[BRARY 


THE  UNIVERSITY 


OF  CAL  [FORNIA 


LOS  ANGELES 


OBSEEVATIONS  01  MILITAEY  LAV. 


CONSTITUTION  AND  PRACTICE 


COURTS    MARTIAL, 


WITH   A   SUMMARY   OF 


THE    LAW    OF    EVIDENCE, 


AS  APPLICABLE  TO  MILITARY  TRIALS ; 


ADAPTED  TO 


THE  LAWS.  .REGULATIONS  AND  CUSTOMS 


ARMY  AND  NAVY  OF  THE  UNITED   STATES. 


BY  WILLIAM  C.  DE  HART, 

CAPTAIN   SECOND    REGIMENT   ARTILLERY. 


NEW    YORK: 
D.   APPLETON  &  CO.,  443  &  445  BROADWAY. 

1864. 


TATE  UNIVERSITY 


ENTERED,  according  to  Act  of  Congress,  in  the  year  1846,  by 

WILLIAM    C.     DE    HART, 

In  the  Clerk's  Office  of  the  District  Court  of  the  United  States,  for  the 
Southern  District  of  New  York. 


r 


PREFACE. 


SINCE  the  legal  establishment  of  the  Army  and  Navy  of  the 
United  States,  there  has  been  no  work  produced,  written  for  the 
express  purpose,  in  conformity  with  the  laws,  regulations,  and  cus- 
toms of  the  services,  and  intended  as  a  guide  for  the  administra- 
tion of  military  justice.*  The  works  to  which  reference  was  gene- 
rally made  to  assist  the  judgment  of  members  of  courts-martial, 
and  to  supply  the  want  of  experience  which  all  felt  to  a  greater  or 
less  degree,  were  the  productions  of  a  foreign  country  and  intended 
for  the  government  or  direction  of  foreign  military  bodies. 

It  is  true,  that  those  books,  generally,  if  not  always,  of  English 
origin,  embodied  the  leading  principles  of  administrative  justice ; 
and  from  the  similarity  or  identity  of  me  laws  of  the  two  countries 
in  many  respects,  were  suited  to  some  extent  to  fulfil  the  wants 
which  led  to  the  study  of  them  : — But  still  there  was  a  deficiency 
— a  'deficiency  which  was  a  source  of  frequent  error,  and  one 
which  could  only  find  a  remedy  in  a  rule,  or  a  system  of  rules  by 
which  the  practice  of  courts-martial  in  our  service  should  be  con- 
sistently regulated. 

The  differences  which  necessarily  exist,  and  whi  :h  distinguish 
the  practices  of  the  American  and  British  Services  were  not  always 
discerned  or  appreciated  by  the  young  officer  who  resorted  to  En- 
glish treatises  on  military  jurisprudence  to  determine  doubts  or 
questions  which  arose  in  the  course  of  his  judicial  duties  ; — and 
hence  errors  were  frequent ;  the  practice  of  courts-martial  was  both 
inconsistent  and  contradictory ;  and  no  settled  interpretation  was 
received  of  either  the  law  or  modes  of  procedure.  This  diversity 
arose  from  causes  which  were  not  always  known  to  the  American 

*  The  small  treatise  on  Courts-martial  by  the  late  Major-Genl.  Macomb,  is  no  excep- 
tion to  the  remark. 


688098 


IV  PREFACE. 

reader.  It  was  the  result  of  a  different  system  of  laws  adopted  to 
meet  the  peculiar  wants  of  different  bodies ;  and  rules  of  practice 
which  were  in  the  one  service  based  upon  the  immediate  and  di- 
rect commands  of  parliamentary  enactments,  were  in  the  other  re- 
•ceived  and  acted  upon,  at  times,  as  the  expression  of  general  prin- 
ciples of  law. 

The  observation  of  such  irregularities,  which  the  author  in  his 
capacity  as  the  acting  Judge- Advocate*  of  the  army,  was  frequently 
called  upon  to  notice,  has  been  the  leading  cause  to  induce  him  to 
undertake  the  composition  of  the  present  essay. 

In  the  performance  of  the  task,  it  has  not  been  his  object  to  pre- 
sent novel  or  striking  views,  but  simply  to  arrange  the  principles, 
and  rules,  and  forms  of  procedure,  which  have  been  considered  well 
settled, — and  to  accompany  the  statement  of  them  with  a  brief  ar- 
gument, whereby  the  military  reader  might  more  fully  comprehend 
the  necessity,  or  the  propriety  of  receiving  them  as  such,  for  the 
regulation  of  trials  by  courts-martial. 

Reference  has  been  made  to  the  most  approved  writers  upon  the 
subject  of  this  treatise,  and  from  their  works  opinions  have  been 
cited  to  support  the  particular  views  entertained  by  the  author, 
which  had  already  either  received  the  sanction  of  our  own  practice, 
or  which  appeared  to  him  as  the  most  just  to  be  followed  ;  and  such 
cases  only  have  been  quoted  as  were  of  authority  by  judicial  or 
military  sanction,  to  illustrate  the  rules  and  principles  set  forth. 

In  the  conduct  of  this  work  the  author  has  noticed  the  differences 
in  practice  which  the  law  makes  for  naval  courts,  and  referred  in 
brief  observations  to  the  distinguishing  rules  for  the  two  services. 
He  has  not  undertaken  to  specify  with  minuteness  the  law  or  the 
regulations  which  govern  the  navy,  because  he  deemed  it  sufficient 
for  the  objects  in  view  merely  to  hint  at  the  same,  leaving  to  the 
intelligence  of  every  naval  officer  to  apply  such  subordinate  to  the 
leading  principles  of  military  jurisprudence,  which  it  is  the  purpose 
of  this  treatise  to  explain. 

He  has  also  presented  a  concise  view  of  the  law  of  evidence,  and 
particularly  such  portions  of  that  subject  as  are  likely  to  be  most 
needed  in  the  course  of  military  trials ;  and  he  has  likewise  given 
a  more  extended  notice  of  the  method  and  course  of  examination 
of  witnesses  than  is  contained  in  other  military  books  of  a  like 

*  The  author  was  employed  in  that  capacity  for  a  considerable  space  of  time,  under  the 
orders  of  the  War  Department. 


PREFACE.  V 

character; — and  from  which  he  feels  confident  that  much  advan- 
tage and  convenience  may  be  derived. 

The  writer  is  aware  that  with  many  readers  mere  originality  is 
often  regarded  as  the  excellence  of  new  books.  In  a  work  like  the 
present  one,  such  should  not  be  expected  or  desired.  All  that  is 
necessary,  is  a  consistent  statement  of  established  principles  in  a 
judicious  and  practical  form,  with  such  remarks  as  may  distin- 
guish their  applicability  to  the  requirements,  according  to  the  laws 
and  customs  which  govern  them,  of  the  land  and  naval  services. 

As  to  the  interpretation  of  the  military  statutes  designed  for  the 
government  of  the  Forces,  he  has  made  but  a  passing  reference  to 
a  few  of  them.  To  treat  fully  upon  this  part  of  the  subject  would 
require  a  greater  space  than  the  proposed  limits  of  this  volume  would 
allow, — and  to  be  properly  executed  would  demand  a  consideration 
of  the  social  and  political  state,  and  the  "  influence  of  manners 
upon  laws,  and  the  force  of  opinion,"  which  have  controlled  the  mili- 
tary legislation  of  the  country. 

Such  are  the  considerations  which  have  directed  the  thoughts 
and  labours  of  the  writer.  And  in  now  presenting  the  results  of 
them  to  the  notice  of  his  professional  brethren,  and  to  the  public  at 
large,  he  asks  their  indulgence  for  imperfections  which  will  un-, 
doubtedly  be  seen, — hoping  too  that  they  may  find  such  advan- 
tage or  benefit  from  the  work  submitted,  as  to  justify  their  kind- 
ness, in  overlooking,  without  critical  severity,  the  errors  it  may 
contain. 

Elizabethtmcn,  N.  J.,  August  1st,  1846. 


CONTENTS, 


CHAPTER  I. 

PAOI 
CONSTITUTION   OF   COURTS   MARTIAL, 1 

CHAPTER   II. 

/ 

OF   JURISDICTION, 10 

CHAPTER  III. 

OF   THE    DIFFERENT   KINDS   AND    COMPOSITION    OF    COURTS   MARTIAL,    .       37 
GENERAL   COURTS   MARTIAL,  .......       42 

REGIMENTAL    AND   GARRISON    COURTS    MARTIAL,  .  .  .  .48 

CHAPTER  IV. 

OF   THE   PARTICULAR   JURISDICTION   OF   COURTS  MARTIAL,  .  .      50 

CHAPTER  V. 

OF   PUNISHMENTS,  ...  ....       68 

CHAPf  ER  VI. 

PRELIMINARIES   TO    TRIAL, .       71 

CHAPTER  VII 

DF  THE   TRIAL  AND   ITS   INCIDENTS, 11:3 

CHAPTER  VIII. 

FINDING, 172 

CHAPTER  IX. 

OF   THE   SENTENCE, 188 


Vlll  CONTENTS. 

CHAPTER  X. 

Pi..  I 

CONFIRMATION    OF    PROCEEDINGS.       REVISION,  ....    203 

REVISION, 204 

CONFIRMATION,     .  * 211 

CHAPTER  XI. 

EXECUTION  OF  SENTENCE,   ...     .     .     .     .     •  244 

CHAPTER  XII. 

OF   REDRESSING  WRONGS.      APPEALS   FROM    A   REGIMENTAL,   TO   A 

GENERAL  COURT  MARTIAL,     .       '  .                  .         .         .         .  252 
APPEALS,  .  '„'.;       .      *. 267 

CHAPTER  XIII. 

COURTS   OF   INQUIRY, 272 

CHAPTER  XIV. 

OF   THE   CHARGES,       •    .  .  .  .  .  .       .    •  '         .  .   284 

CHAPTER  XV. 

OF    THE   JUDGE    ADVOCATE,      .  300 

CHAPTER  XVI. 

OF  EVIDENCE, 334 

PAROL    EVIDENCE,  .    * 336 

WRITTEN    EVIDENCE, 336 

DIRECT,    OR    POSITIVE    EVIDENCE, 337 

PRESUMPTIVE    EVIDENCE,         .  , 338 

PRIMARY    AND    SECONDARY    EVIDENCE,       .  ....  .  .    358 

CONFESSIONS,         .  .  .  ,  .       '     .  "     t  ^  '          .  .  .    381 

COMPETENCY   OP   WITNESSES, 387 

CREDIBILITY    OF    WITNESSES,  .......    405 

EXAMINATION    OF   WITNESSES, 406 

APPENDIX. 

No.  1.  FORM  OF  ORDER  FOR  CONVENING  A  GENERAL  COURT 

MARTIAL,  ........  415 

No.  2.  FORM  OF  ORDER  FOR  CONVENING  A  NAVAL  GENERAL 

COURT  MARTIAL, 416 

No.    3.       FORM    OF    PROCEEDINGS   OF    A   GENERAL    COURT   MARTIAL,          416 


PRACTICE  OF  COURTS  MARTIAL. 


CHAPTER  I. 

CONSTITUTION  OF  COURTS  MARTIAL. 

IN  considering  the  military  laws  of  the  United  CHAPTER 
States,  it  is  not  necessary  to  refer  to  a  period  *• 
anterior  to  that  when  they  ceased  to  be  English 
colonies.  The  military  establishment,  and  the 
regulations  by  which  it  was  governed,  were,  du- 
ring the  state  of  colonial  dependence,  determined 
by  parliament  and  the  general  authority  vested 
in  the  sovereign  of  Great  Britain,  and  by  powers 
exercised  from  time  to  time,  as  local  or  particu- 
lar exigencies  required,  by  the  legislative  assem- 
blies of  the  respective  colonies. 

The  following  observations  from  "  Dupin's 
View  of  the  Military  Force  of  Great  Britain," 
will  show  the  extent  of  the  military  authority 
of  the  sovereign  of  that  nation : 

"  By  the   constitution  of  Great  Britain,  the  Of  the  Pariia 
sovereign  is  vested  with  the  supreme  military 
authority.     His  orders,  and  his  alone,  are  to  be 
obeyed,  as  long  as  they  are  in  unison  with  the  ereign- 
fundamental  laws  of  the  empire.     Beyond  this, 
obedience  itself  would  be  deemed  treason  to  the 
state,  whatever  the  rank  or  station  of  the  of- 
fender. 

1 


CONSTITUTION    OF   COURTS    MARTIAL. 


CHAPTER  "The  sovereign  power  of  the  British  nation 
'•  is  exercised  in  plenitude  by  the  parliament  of 
the  United  Kingdom,  and  without  its  authority 
no  military  force  can  be  levied  or  maintained. 
It  fixes  the  number  of  men  whom  the  sovereign 
may  retain  or  summon  under  his  colors ;  and 
finally  establishes  the  principles  of  criminal  ju- 
risprudence t6  which  it  is  necessary  to  subject 
the  soldier. 

"  This  law  (the  Mutiny  Act)  determines  the 
nature  and  extent  of  the  punishments  which 
can  be  inflicted  upon  the  military  citizen.  In 
certain  cases  it  is  left  to  the  discretion  of  the 
judges  to  mitigate  the  penalties  according  to  the 
circumstances  of  the  extenuation  in  the  guilt  of 
the  offenders.  It  authorizes  the  sovereign  to 
ordain  by  Articles  of  War,  with  regard  to  crimes 
not  specified  by  the  military  law,  every  penalty 
not  reaching  to  death  or  mutilation.  An  un- 
bounded authority !  and  utterly  incompatible 
with  the  government  of  a  free  people,  if  the 
general  liberty, .  if  the  moderation  of  the  sove- 
reign and  his  ministry  did  not  combine  to  re- 
strain in  practice  the  latitude  of  an  arbitrary 
power,  which  is  the  more  formidable,  as  it  has 
the  sanction  of  law." 

The  above  extract  may  also  serve  to  contrast 
the  greater  limitations  imposed  upon  the  military 
authority  of  the  chief  magistrate  of  the  United 
States.  Congress  too,  is  not,  as  the  British  par- 
liament is  said  to  be,  omnipotent,  and  cannot 
therefore,  exercise  the  power  of  the  nation  in 
plenitude,  but  is  restrained  by  the  fundamental 
rules  of  a  written  constitution.  By  the  consti- 
tution the  president  is  the  commander  in  chief 


CONSTITUTION    OP    COURTS    MARTIAL. 


of  the  land  and  naval   forces  of  the   United     CHAPTER 
States,  but  he  cannot  ordain  any  penalty  for         '• 


any  military  crime,  not  expressly  declared  by  J 

art  rtf  pnnoTP<!<5  dent  of  the  Uni- 

acu  of  congress*.  ted  State8  and 

The  rules  and  articles,  for  the  government  of 
the  armies  and  navy  of  the  United  States  are 
declared  by  law,  unlimited  in  duration,  though 
subject  at  any  time  to  modification  or  repeal ;  , 

J  •>  ft  Military  laws 

and  in  this  respect  are  alike  the  mutiny  act  of  declared  by  con- 
Great  Britain,  by  which  a  standing  army  is 
authorised  for  the  space  of  one  year  only,  and 
which  is,  therefore,  annually  re-enacted.  But 
although  the  legislative  restrictions  in  regard  to 
the  duration  of  military  bodies  have  been  less 
precise  in  this  country  than  in  England,  there 
has  been,  nevertheless,  an  equal  jealousy  and 
fear  of  standing  armies ;  and  the  same  principle 
is  as  vital  now  as  it  was  when  the  old  congress 
on  the  14th  October,  1774,  declared  that — 
"  keeping  a  standing  army,  in  several  of  the  col- 
onies, in  time  of  peace,  without  the  consent  of 
the  legislature  of  that  colony,  in  which  such 
army  is  kept,  is  against  law." 

The  system  of  American  military  jurispru-  American  miii- 
dence  is  to  be  considered  as  commencing  with  denceUcom-u 
the  Revolution.     When  the  difficulties  and  dis-  Revolution! 
sensions  between  the   American   colonies   and 
Great  Britain  had  reached  a  point  from  which 
it  was  quite  apparent  that  neither  party  would 
recede,  and  that  the  question  of  differences  was 
therefore  to  be   settled  by  the  arbitrament  of 
arms,  congress,  June  14,  1775,  authorised  a  mil- 
itary force  of  six  regiments.     On  the  following 
day  it  was  resolved  that  a  general  be  appointed ; 
and  the  articles  of  war  were  first  ordained  for  the 


4  CONSTITUTION    OF    COURTS    MARTIAL. 

CHAPTER  government  of  the  American  army  on  the  30th 
'•  day  of  June,  1775.  On  the  7th  of  November 
following,  some  additional  articles  of  war  were 
made ;  and  these  constituted  the  governing  mili- 
tary rules  to  the  20th  of  September,  1776,  OQ 
which  day  by  resolution  of  congress,  it  was  de- 
clared that,  "the  rules  and  articles  of  war  by 
which  the  said  armies  have  heretofore  been  gov- 
erned, shall  be,  and  they  are  hereby  repealed :" — 
and  others  were  substituted  in  their  place. 
The  rules  and  These  rules  and  articles  were  adopted  and 

articles  of  war  .  L 

adopted  and  re-  recognized  under  the  constitution  by  the  act  of 

cognized    under  « /->/•»  111 

the  constitution,  congress,  September  29,  1789,  and  the  law  con- 
tinued in  force  until  it  was  repealed  and  sup- 
plied by  the  act  of  April  10,  1806. 

The  military         The  act  of  congress  approved  April  10,  1806, 

code  established  £f  J 

by  the  act  of  is  the  military  code  established  for  the  govern- 
ment of  the  armies  of  the  United  States,  and  it 
embodies  the  authority  by  which  courts-martial 
may  be  assembled,  and  can  act. 

By  its  provisions,  general,  regimental  and  gar- 
rison courts-martial  are  authorised,  and  the  ne- 
cessary power  conferred  upon  certain  officers  to 
appoint  the  same.  The  composition  of  these 
several  courts,  from  the  superior  to  that  of  the 
inferior  jurisdiction,  is  clearly  described,  as  well 
as  the  persons  to  whom  the  power  of  appoint- 
ment is  delegated. 

There  is,  however,  an  exception  made  to  the 
general  rule  established  by  this  act,  and  which 
is  found  in  an  act  of  congress  of  May  29,  1830. 
By  this  it  was  enacted  "  that  whenever  a  general 
officer  commanding  an  army,  or  a  colonel  com- 
manding a  separate  department,  shall  be  the  ac- 
cuser or  prosecutor  of  any  officer  of  the  army  of 


CONSTITUTION    OF    COURTS    MARTIAL. 


the  United  States  under  his  command,  the  gen-     CHAPTER 

eral  court-martial  for  the  trial  of  such  officer *l 

shall  be  appointed  by  the  president  of  the  Uni- 
ted States." 

Independent  of  this  special  act,  the  president  Exception  to  the 

r  i  '  i  right  to  appoint 

of  the  United  States,  being  by  the  constitution  courts  martial, 

J  by  act  of  May 

of  the  country,  the  commander-in-chief  of  the  29  wao. 
army  and  navy  of  the  United  States,  is  compe- 
tent at  all  times  to  appoint  general  courts-martial. 
The  law  of  May  29,  1830,  was  founded  upon 
the  presumption,  that  an  accused  person,  brought 
to  trial  by  the  order  of  his  commanding  officer, 
who  had  the  appointment  of  the  court  and  the 
revision  of  its  proceedings,  might  suffer  great 
prejudice.  While  the  abstract  principle  of  jus- 
tice which  gave  origin  to  this  law  may  to  some 
extent  be  acknowledged,  the  practice  under  it, 
and  the  rule  which  it  enforces,  has  been  found 
to  be,  and  under  the  usual  circumstances  attend- 
ing an  army  in  the  field  removed  at  a  great  dis- 
tance from  the  seat  of  government  would  neces- 
sarily prove,  of  considerable  hindrance  and  pre- 
judice to  the  public  service. 

The  act  of  1806  fixes  the  number  of  members  or  the  number 
necessary  for  a  general  court-martial  at  five  for  j^SS1^!™ 
the  minimum,  and  thirteen  for  the  maximum,  martiaL 
while  any  other  number  between  those  extremes 
is  competent  to  exercise  all  the  judicial  powers 
of  the  court. 

The  same  act  likewise  authorizes  the  com-  or  regimental 
mander  of  a  regiment  or  corps,  to  appoint  for  his  SS^SSSd, 
own  regiment  or  corps,  courts-martial  to  consist  how  appointe4 
of  not  more  than  three  commissioned  officers  for 
the  trial  of  cases  not  capital : — and  for  the  same 
purpose  all  offi  3ers  commanding  any  of  the  gar- 


0  CONSTITUTION   OP    COURTS    MARTIAL. 

CHAPTER     risons,  forts,  barracks,  or  other  places,  where 
'•         the  troops  consist  of  different  corps,  may  assem- 
ble courts-martial  to  consist  of  three  commis- 
sioned officers. 

who  may  ap-       A  general  court  martial  then  can  only  be  ap- 
point general  .     °  i    ••         i  i         <•    i 

couru  martial,  pointed  or  assembled  by  the  commands  of  the 
president  of  the  United  States ;  a  general  officer 
commanding  an  army ;  or  a  colonel  commanding 
a  separate  department.  Such  a  court  is  of  the 
highest  military  judicial  authority;  while  the 
inferior  courts,  as  the  regimental  court  martial  to 
be  appointed  by  the  commanding  officer  of  a 
regiment  or  corps ;  and  the  garrison  court-mar 
tial,  appointed  by  the  commander  of  a  fort,  bar- 
rack, or  other  place,  are  of  very  limited  jurisdic- 
tion, to  which  farther  reference  will  be  made  in 
a  subsequent  chapter. 

warrant  for  the      The  warrant  for  the  assembling  a  court-mar- 

assembling  of  a      . 

court  martial,  tial,  or  the  appointment  of  members  to  compose 
the  same,  is  in  the  form  of  an  order,  and  issues 
directly  from  the  officer  to  whom  the  law  has 
delegated  such  power. 

^mT'co^rte*"  ^or  many  years,  and  from  a  period  anterior  to 
LTdS  Ctednot  tne  war  °^  1812,  up  to  as  late  a  date  as  the  year 
1841, J  it  had  been  customary  for  commanding 
officers,  to  whom  the  right  of  assembling  general 
courts-martial  had  been  given,  to  delegate  such 
authority  to  inferior  commanders,  at  least  so  far 
as  to  authorise  them  to  name  or  appoint  the 
members  of  the  court.  This  was  indeed  the 
very  essential  of  the  right,  and  was  in  fact  as- 
suming a  legislative  power  to  confer  upon  a  sub- 
ordinate, an  authority  to  determine  the  composi- 
tion of  a  court-martial,  who  possessed  no  original 

»  See  Genl.  Order  71,  of  1841. 


CONSTITUTION   OF   COURTS    MARTIAL. 


I. 


power  to  order  a  court.  This  erroneous  prac-  CHAPTER 
tice  undoubtedly  had  its  beginning  in  the  suppo- . 
sed  analogy  in  similar  cases,  to  be  found  in  the 
British  army.  From  the  fact  that  the  rules  and 
articles  for  the  government  of  the  armies  of  the 
United  States,  were  derived  immediately  from 
the  English  military  laws,  it  was  a  very  natural 
conclusion  to  suppose,  that  such  practice  was 
the  interpretation  of  the  law.  Whereas,  had 
more  accurate  attention  been  given  to  the  sub- 
ject, it  would  have  been  seen,  that  the  authority 
to  delegate  to  another  the  power  to  assemble  or 
appoint  courts-martial,  was  an  authority  derived 
expressly  from  statute.1 

But  further  than  this  general  reasoning  against 
the  propriety,  or  legality  of  such  a  rule,  we  find 
a  special  objection  to  it  in  the  spirit  of  the  act 
of  May  29,  1830,  before  quoted.  By  that  act, 
the  president  of  the  United  States  is  required 
in  certain  cases  to  appoint  the  court,  and  should 
such  a  rule  obtain  as  that  now  under  considera- 
tion, it  is  very  evident  that  by  its  application, 
the  intention  of  the  law  would  be  defeated,  and 
its  entire  operation  be  completely  annulled. 

It  has,  therefore,  been  decided  that  no  officer 
of  the  army  can  empower  another  to  act  in  his 
stead  in  the  appointment  of  courts  martial.  He 
alone  to  whom  the  law  has  given  the  authority 
to  act  in  such  cases  must  appoint  the  court ;  and 
no  right  to  delegate  such  authority  can  be  exer- 
cised without  the  express  sanction  of  law.2 

At  an  early  period  of  the  Revolution,  congress  2SJ1  regula 

» Mutiny  Act, 

2  See  decision  in  the  case  of  Capt.  S.  McKenzie,  2nd  Regt.  Ar- 
tillery. August,  1845. 


s 


CONSTITUTION    OF    COURTS    MARTIAL. 


CHAPTER 
I. 


Of  naval  courts 
martial,  who 
may  appoint, 
and  how  com- 
noned. 


Marine  corps, 
how  governed 


took  into  consideration  the  state  of  the  naval 
defences  of  the  country,  and  on  November  28, 
1775,  adopted  rules  and  regulations  for  the  gov- 
ernment of  the  same.  An  act  for  the  govern- 
ment of  the  navy  was  passed  March  2,  1799, 
which  continued  in  force  until  repealed  and 
substituted  by  the  act  approved  April  23,  1800.1 

By  the  provisions  of  the  35th  article  of  this 
enactment  general  courts  martial  for  the  navy, 
"  may  be  convened  as  often  as  the  president 
of  the  United  States,  the  secretary  of  the  navy, 
and  the  commander  in  chief  of  the  fleet,  or  com- 
mander of  a  squadron,  while  acting  out  of  the 
United  States,  shall  deem  necessary." 

Such  general  courts  martial  shall  not  consist 
of  more  than  thirteen  nor  less  than  five  mem- 
bers ;  and  as  many  members  shall  be  summoned, 
not  to  exceed  thirteen,  on  every  such  court,  as 
can  be  convened  without  injury  to  the  service. 
"And  in  no  case,  where  it  can  be  avoided,  with- 
out injury  to  the  service  shall  more  than  one- 
half  the  members,  exclusive  of  the  president, 
be  junior  to  the  officer  to  be  tried." 

The  marine  corps,  is  also  a  distinct  organized 
military  body,  and  subjected  to  the  laws  and 
regulations  established  for  the  government  of 
the  navy,  except  when  detached  for  service 
with  the  army  by  order  of  the  president  of  the 
United  States.8  It  will  not  be  necessary,  there- 
fore, to  make  any  special  reference  to  this  body, 
as  they  are  subject  to  either  the  laws  governing 
the  army  or  the  navy,  according  to  the  particu- 
lar service  with  which  they  may  be  associated. 

In  conformity  with  the  acts  of  congress  re- 

1  Naval  Laws,  pp.  18.  47.  59.  *  Ibid.  p.  156. 


CONSTITUTION   OF   COURTS    MARTIAL. 

ferred  to,  all  courts-martial  are  appointed  and     CHAPTER 

find  their  sanction.     Deriving  their  origin  and '•• 

powers  from  the  same  source  from  which  flow 
the  statutes  of  the  land,  the  same  respect  and 
deference  to  their  character  and  acts  are  due, 
which  every  citizen  is  bound  to  observe  towards 
the  ordinary  courts  of  civil  judicature. 


CHAPTER  II. 


OF  JURISDICTION. 


CHAPTER 
n> 


THE  institution  of  military  courts  had  its  on- 
gin,  undoubtedly,  in  times  of  antiquity  from  the 
relations  which  subsisted  between  the  powers 
of  an  absolute  government,  and  the  people  sub- 
jected to  its  sway  ;  and  was  a  very  convenient 
tribunal  by  the  summary  exercise  of  its  author- 
ity for  the  suppression  of  license  and  excess  of 
the  soldiery,  as  well  as  a  ready  engine  of  des- 
potism, whereby  it  might  execute  its  purposes 
or  gratify  its  passions.  From  the  application  of 
it  to  the  military  state  of  a  people,  which  in- 
deed, was  the  state  in  which  the  early  period 
of  most  nations  was  passed,  it  was  very  easy  to 
continue  its  application  to  the  civil  or  social 
condition  of  the  same  people  when  peace,  and 
its  attendant  arts  and  occupations,  and  the  con- 
sequent progress  in  civilization  had  imposed 
upon  them  other  hopes  to  animate  their  hearts, 
and  other  motives  to  embellish  life. 

^e  Court  °f  Chivalry,  or  Marshal's  court,  is 
said  to  be  the  fountain  of  English  martial  law.1 

lisa  martial  law. 

This  court  was  holden  by  the  lord  high  consta- 
ble and  earl  marshall,  two  officers  of  high  au- 
thority and  extensive  command,  in  all  matters 
touching  the  subject  of  war  ;  and  these  officers 
claimed  and  exercised  a  ministerial,  as  well  as 

i  Adye. 


Slvaiourtthef 


OP   JURISDICTION.  1] 

a  judicial  authority.     There  is  no  certain  evi-     CHAPTER 

dence,  or  prints  of  footsteps  in  past  times  of  the         "'  

original  institution  of  the  office,2  but,  probably, 
it  grew  out  of  the  necessities  which  manifested 
themselves  when  large  bodies  of  men  were  as- 
sembled for  military  organization  and  service. 

In  the  progress  of  time  these  officers,  from  the 
looseness  of  the  terms  in  which  authority  was 
delegated  to  them,  gradually  made  many  usur- 
pations upon  the  rights  of  the  subject  and  the 
jurisdiction  of  the  civil  departments,  or  ordinary 
courts  of  the  realm,  and  to  such  a  height  did  it 
attain,  that  it  was  found  necessary  to  limit  and 
ascertain  its  lawful  jurisdiction  by  statute.1 

During  the  troublous  times  of  the  institution 
of  this  court,  amidst  civil  dissensions  and  mar- 
tial violence,  it  was  not  at  all  strange  that  it 
should  mix  up  with  its  decisions  questions  per- 
taining rather  to  matters  of  purely  civil  con- 
cerns, as  well  as  those  of  "  honor  and  arms,"  for 
which  it  was  altogether  intended.  The  absence 
of  constitutional  restraints  upon  the  king,  by 
whom  the  authority  to  the  court  was  delegated, 
made  it  both  easy  and  safe  for  it  to  transcend  a 
wholesome  jurisdiction,  because  it  was,  in  fact, 
but  the  exertion  of  the  kingly  prerogative  itself, 
and  found  thereby  an  encouragement  to  embrace 
within  its  sphere  of  action  the  most  diverse  ques- 
tions, and  common  subjects,  which  might  be  agi- 
tated in  dispute  between  subject  and  subject. 

The  interposition  of  statutory  regulation,  (13 
R.  II.,  ch.  2,)  by  curtailing  its  authority,  lessened 
its  abuses ;  and  the  court,  for  various  causes, 

1  Hawkins'  Pleas,  b.  II.,  chap.  iv.     4  Coke's  Inst. 
8  Ibid.  Pleas,  b.  II.,  chap.  iv. 


12  OF   JURISDICTION. 

CHAJTER     such  as  the  abolition  of  the  hereditary  authority 
"•         of  the  constable,  and  the  state  of  uncertainty 
with  respect  to  the  judicial  powers  of  the  consta- 
ble and  marshal,  gradually  lost  its  consideration, 
and  its  jurisdiction  has  gone  entirely  into  disuse. 
The  character       The  character  of  martial  law,  however,  as  it 

of  martial  law  ,  .,  _-._ 

much  modified    CXlSted  DHOr  tO  the  revolution  Of   1688,  and  SUb- 
since  the  Eng-  .     ,     ,  , 

lish  Revolution  sequent  to  that  period,  has  undergone  a  great 

of  1688,  and  its      J1  *  '  ?     .     ...     °.      . 

application  re-  change  i    and  the  application  of  it  mdiscnmi- 

BtrictmL  ^  - 

nately  to  all  classes  of  persons,  and  for  every 
description  of  offences,  is  no  longer  tolerated. 
The  feeling  which  was  engendered  in  the  minds 
of  the  people  of  England  by  the  harshness  with 
which  the  sovereign  at  times  exercised  this 
power,  before  strong  constitutional  restraints 
were  imposed  upon  his  will,  is  clearly  to  be 
traced  in  the  opinions  and  writings  of  some 
Opinions  of  em-  of  the  most  eminent  of  their  legal  men.  Sir 
sirnMattTew~  Edward  Coke,  who  lived  during  the  reign  of 
"'  Elizabeth  and  James,  was  very  decided  in  the 
expression  of  his  feelings ;  and  Sir  Matthew 
Hale,  another  eminent  lawyer,  who  lived  at  a 
later  period,  during  the  time  of  Charles  II.,  has 
given  his  most  decided  disapprobation  of  martial 
law  as  it  then  existed,  or  was  exercised.  "  It 
is,"  says  he,  "in  truth  and  reality  no  law,  but 
something  indulged  rather  than  allowed  as 
law;"1  and  it  is  laid  down  as  a  principle, 
that  if  one  "  who  hath  a  commission  of  mar- 
tial authority  doth  in  time  of  peace  hang  or 
otherwise  execute  any  man  by  color  of  martial 
law,  it  is  murder."2 

1  Hale's  Hist.  Common  Law. 

*  Hale's  Pleas  of  the  Crown,  Coke's  Inst.,  and  1  Blackstone'g 
Com.,  413. 


OP   JURISDICTION.  la 

The  above,  it  is  to  be  remarked,  must  be  un-  CHAI-TEK 
derstood  as  applying  to  those  periods  of  English  n> 
history,  when  the  kings,  especially  those  of  the 
family  of  the  Stuarts,  claimed  the  exercise  of 
prerogative  directly  opposed  to  the  declarations 
of  Magna  Charta :  and  although  Sir  William 
Blackstone,  the  able  and  learned  commentator 
on  the  laws  of  England,  has.  been  strongly  cen- 
sured by  some  military  writers1  as  deliberately 
adopting  and  avowing  the  same  prejudices,  un- 
der very  dissimilar  circumstances,  yet  it  seems 
hardly  reconcilable  with  the  facts  attending  the 
times  in  which  he  wrote  ;2  and  the  context  by 
which  his  observations  are  qualified,  to  suppose 
him  to  have  committed  so  glaring  an  incon- 
sistency. 

The  belief  that  his  observations,  upon  that 
portion  of  his  subject,  are  rather  relative  to  the 
history  of  the  past,  than  indicative  of  any  truths 
of  his  own  day,  is  sustained  by  what  is  known 
to  have  been  (as  it  still  is)  the  real  source  of 
military  authority,  and  thus  the  true  interpreta- 
tion of  his  words  is  arrived  at.  This  is  not  only 
a  just  inference,  so  far  as  it  regards  the  merits 
of  the  question,  but  it  likewise  dissipates  the 
danger  from  the  supposed  error  of  so  clear  a 
mind, — which  from  its  weight  of  authority, 
might  pass  without  question,  as  an  establish- 
ed legal  truth. 

But  the  days  when  arbitrary  rulers  could  ex-  The  legislator* 
ert  an  irresponsible  power  for  the  gratification 
of  personal  objects,  have  passed  away,  and  the 
doubts  which  confused,  and  the  fears  which  en-  l 
feebled  the  minds  of  individuals  or  of  commu- 

1  Tytler  and  Adye.  2  Geo.  III. 


14  OP   JURISDICTION. 

CHAPTER     nities,  when  subjected  to  the  rule  ot  authority 
"'         which   claimed,  as  it  likewise  exercised,  the 


right  of  disposing  of  private  and  public  interests, 
are  dissipated  or  chased  away  by  the  light  and 
warmth  of  humane  and  liberal  government. 
Under  constitutional  forms,  the  legislative  is  the 
supreme  power  of  the  state,  and  it  is  thence  in 
our  country,  that  military  courts,  as  well  as  the 
civil  courts,  derive  all  the  power  which  they 
possess  for  the  exercise  of  their  appropriate 
functions.  Flowing  from  the  same  source,  and 
imbued  or  endowed  with  the  like  essence  of  ju- 
dicial power,  the  military  and  the  ordinary 
courts  of  civil  judicature,  within  the  spheres  of 
their  several  jurisdictions,  are  deserving  of  the 
same  regard,  and  entitled  to  a  like  respect. 

Military  law  is      It  is  then  clear  that  martial,  or  the  law  mil- 
part  of  the  law 

of  the  land,  and  itarv,  as  it  exists  in  this  country,  forms  part  of 

entitled  to    re-  J '  •' 

sped  and  obe-  the  law  of  the  land,  and  as  it  is  enacted  by  the 

pience.  ,  j .  •  •  •  • 

same  authority,  so  has  it  the  same  binding  force, 
or  the  same  positive  obligation  upon  those  to 
whom  it  is  intended  to  apply,  as  the  civil  statute 
law  has  upon  the  citizens  in  general. 
Necessity  of  un-       An  institution,  thus  being  clothed  with  judicial 

derstandmg  and 

fixing  limits  to  powers,  and  which  may  be  exerted  in  the  con- 

military  author-    r  < 

hy,  or  the  juris-  sideration  and  decision  of  questions  of  the  most 

diction  of  courts 

martial.  momentous  description,  affecting  not  only  the 

passing  or  momentary  interests  of  parties,  but 
reputation  and  even  life  itself,  certainly  claims 
very  serious  thought  to  ascertain  and  fix  defi- 
nite and  understandable  limits  to  its  authority. 
An  inquiry  of  this  kind  in  relation  to  military 
courts,  seems  the  more  necessary  because,  they 
who  are  called  upon  in  the  character  of  judges 
to  administer  justice  through  its  means,  may 


OF   JURISDICTION.  15 

also  be  cited  before  the  same  tribunal,  as  the  ac-     CHAPTER 
cused,  whose  acts  are  subject  to  its  scrutiny.  "• 

The  profession  of  arms,  offering  but  few  op- 
portunities for  the  acquisition  of  that  species 
of  knowledge  which,  in  a  technical  form,  is 
made  most  available  in  courts  of  law  ;  and  the 
youth  and  inexperience  of  a  great  number  of  its 
members,  being  such  as  to  unfit  them  for  the  de- 
cision of  questions,  depending  even  upon  settled 
principles  of  interpretation,  when  called  upon 
suddenly  to  act,  much  less  those  which  are  in- 
volved in  subtle  arguments  and  intricate  circum- 
stances— make  it  still  more  desirable,  that  the 
jurisdiction  of  the  body,  which  from  time  to 
time  they  are  called  upon  to  exercise,  and  to 
whose  authority  they  are  at  all  times  subject, 
should  have  its  limits  defined,  as  clearly  as  pos- 
sible both  for  their  guidance  and  their  safety. 

The  constitution  of  the  United   States  has  courts  martial 

•  i  •    i  /»  i  have  cogni- 

clearly  provided   for  the  right  of   personal  se-  zanceofmiiita- 

.  111  ••!/.  i         ry  crimes  undei 

curity,  guarded  by  provisions  drawn  from  the  the  constitution 
great  charter  of  English  liberty,  and  fundamen- 
tal acts  of  parliament.  The  substance  of  such 
provisions  is  to  be  found  in  the  Vth  and  Vlth 
amendments  of  the  constitution.  By  the  Vth 
amendment  it  is  declared  that  "  No  person  shall 
be  held  to  answer  for  a  capital  or  otherwise  in- 
famous crime,  unless  on  a  presentment  or  indict- 
ment of  a  grand  jury,  except  in  cases  arising  in 
the  land  or  naval  forces,  or  in  the  militia,  when 
in  actual  service,  in  time  of  war  or  public  dan- 
ger ;  nor  shall  any  person  be  subject  for  the 
same  offence  to  be  twice  put  in  jeopardy  of  life 
or  limb." — Under  this  exception  military  courts 
take  cognizance  of  such  matters  as  justly  fall 


16 


OF    JURISDICTION. 


CHAPTER 
II. 


Definition  of 
military  law. 


within  their  competency,  and  proceed  against 
offenders,  according  to  the  language  of  the  con- 
stitution, by  "  due  process  of  law,"  which  terms 
applied,  in  reference  to  this  subject,  are  convert- 
ible with  those  of,  by  the  law  of  the  land.1 

It  may,  perhaps,  be  useful  to  attempt  here  a 
definition  of  military  law,  as  thereby,  supposing 
it  to  be  accurately  defined,  a  nicer  observation 
of  its  true  character  may  induce  a  greater  cau- 
tion in  its  application. 

Military  law  is  that  branch  of  the  laws  which 
respect  military  discipline,  and  the  government 
of  persons  employed  in  military  service.  It  is 
not  exclusive  of  the  common  law,  for  a  soldier 
does  not  cease  to  be  a  citizen,— on  the  contrary 
he  is  a  citizen  still,  capable  of  performing  the 
duties  of  such,  and  amenable  to  the  jurisdiction 
of  the  civil  courts  for  his  acts  or  conduct  in  that 
capacity.  It  is  in  fact  a  rule  superadded  to  the 
ordinary  law  for  regulating  the  citizen  in  his 
character  of  a  soldier.2 

It  will  be  perceived  that  the  leading  charac- 
teristic of  this  definition  is,  that  military  law 
cannot  be  applied  for  the  regulation  of  the  con- 
duct of  persons  in  private  or  civil  life;  nor  does 
it  exclude  the  operation  of  the  common  law — 
for  although  the  civil  courts  cannot  take  cogni- 
zance of  military  offences,  as  such,  strictly  speak- 
ing, yet  the  principle  of  the  superiority  of  the 
civil  over  the  military  authorities  is  clearly  set 
forth  by  the  33d  article  of  war,  and  all  officers 
are  required  thereby  to  deliver  over  offenders  or 
accused  persons,  to  the  civil  magistrate,  and  to 
oe  aiding  and  assisting  the  officers  of  justice  in 

1  Kent's  Com.,  vol.  ii.  p.  10.  2  Encyc.  Brit. 


OF   JURISDICTION.  17 

apprehending  and  securing  the  person  of  the  ac-     CHAPTER 
cused  in  order  to  bring  him  to  trial  :  and  the         "• 
penalty  denounced  by  the  same  article  against 
any  officer  who  shall  wilfully  neglect,  or  shall 
refuse,  upon  application,  to  deliver  over  such  ac- 
cused commissioned  officer  or  soldier  to  the  civil 
magistrate,  or  to  be  aiding  and  assisting  to  the 
officers  of  justice  in  apprehending  such  accused 
persons,  is  cashiering. 


It  must  be  understood,  however,  that  the  term  or  the 
martial  law  has  a  different  interpretation  from  nrnrtiaiandndi- 
that  of  military  law.  Military  law,  as  has  been  ltary 
stated  above,  is  a  rule  for  the  government  of 
military  persons  only  ;  but  martial  law  is  under- 
stood to  be  that  state  of  things  when,  from  the 
force  of  circumstances,  the  military  law  is  indis- 
criminately applied  to  all  persons  whatsoever. 
The  distinction  is  thus  expressed  by  a  writer  on 
military  law  :  "  Martial  law  extends  to  all  per- 
sons ;  military  law  to  all  military  persons,  but 
not  to  those  in  a  civil  capacity."1 

How  and  where,  under  particular  coniunc-  Martial  law 

,          .  .  r  J  within  the  lim- 

tures  of  the  time,  martial  law  may  be  declared,  its  of  the  u.  s. 

•  i  .-i-ii  i         considered  ua- 

and  by  whom,  is  not  here  considered  ;  but  the  constitutional. 

proclamation  of  such  a  rule  within  the  limits  of 

the  United  States  is  a  very  questionable  pro- 

ceeding, and  thought  to  be  an  "  excrescence"  not 

warranted  or  sanctioned  by  any  "  distemper  of 

the  state."     The  substitution  of  this  power  for 

the  civil  courts,  subjects  all  persons  to  the  arbi- 

trary will  of  an  individual,  and  to  imprisonment 

for  an  indefinite  period,  or  trial  by  a  military 

body.     Of  such  high  importance  to  the  public  is 

the  preservation  of  personal  liberty,  that  it  has 

1  Hough  on  Courts  Martial,  p.  384. 
3 


18  OP   JURISDICTION. 

CHAPTER     been  thought  that  unjust  attacks,  even  upon  life 
"•         or  property,  at  the  arbitrary  will  of  the  magis- 
trate, are  less  dangerous  to  the  commonwealth, 
than  such  as  are  made  upon  the  personal  liberty 
of  the  citizen. 

Now,  to  guard  against  such  abuse,  the  consti 
tution  guarantees  the  privilege  of  the  writ  of 
habeas  corpus,  which  it  declares  "  shall  not  be 
suspended,  unless  when  in  cases  of  rebellion  or 
invasion,  the  public  safety  may  require  it" — and 
the  intervention  of  congress  is  necessary  before 
such  suspension  can  be  made  lawful.  Such  too 
is  the  doctrine  of  the  British  constitution,  where 
the  crown,  invested  with  high  prerogatives,  is 
yet  most  scrupulously  restricted  in  all  that  relates 
to  the  liberty  of  the  person  of  the  subject.  In 
commenting  upon  this  part  of  the  laws  of  Eng- 
land, Mr.  Justice  Blackstone  says,  "  but  the  hap- 
piness of  our  constitution  is,  that  it  is  not  left  to 
the  executive  power  to  determine  when  the  dan- 
ger of  the  state  is  so  great  as  to  render  this 
measure  (the  arbitrary  imprisonment  of  a  per- 
son) expedient ;  for  it  is  the  parliament  only,  or 
legislative  power,  that,  whenever  it  sees  proper, 
can  authorise  the  crown,  by  suspending  the 
habeas  corpus  act  for  a  short  and  limited  time,  to 
imprison  suspected  persons  without  giving  any 
reason  for  so  doing."1 

As  the  promulgation  and  operation  of  martial 
law  within  the  limits  of  the  Union  would  neces- 
sarily be  a  virtual  suspension  of  the  habeas  cor- 
pus writ  for  the  time  being,  it  would  conse- 
quently appear  to  stand  in  opposition  to,  or  be 

i  Blackstone's  Commentaries,  135.    The  British  Parliament  is 
said  to  be  omnipotent ! 


OF   JURISDICTION.  19 

In  conflict  with,  that  provision  of  the  constitu-     CHAPTER 
tion  above  cited.  "• 

As  the  army,  as  has  been  above  stated,  is  es-  The  army  is  a 
tablished  by  the  highest  power   of  the  state,  bodymu 
with  a  definite  shape  and  legal   existence,  it 
must  thereby  be  received  and  acknowledged  as 
a'  constitutional  body.     From  the  moment  it  be- 
came an  organ  of  legislative  creation,  it  likewise 
became  an  object  of  legislative  control,1  and 
hence  the  institutions  intended  for  its  govern- 
ment, are  derived  from  the  same  source  as  those 
which  aflect  the  mass  of  community. 

The  jurisdiction  of  courts-martial  is  special  The  jurisdiction 

,.      .  .    .  „          •  .  of  courts  martia. 

ami  limited,   arising  from  the   cognizance   of  »  special  and 

limited. 

crimes  as  committed  by  individuals,  that  is,  by 
individuals  subject  to  military  law;  and  the 
crimes  or  acts  are  such  as  are  repugnant  to  mil- 
itary discipline,  and  are  pointed  out  by  law,  by 
the  general  regulations  for  the  army,  and  by  the 
custom  of  war. 

Those  acts  denned  by  law,  are  sufficiently 
distinct  for  the  observation  of  members  of  mil- 
itary courts,  whereby  they  may  regulate  their 
proceedings,  and  no  embarrassment  can  arise  in 
regard  to  the  propriety  of  making  them  the  sub- 
ject of  military  investigation. 


The  general  regulations  for  the  army  are  a  General 

_      ,  _         ..         .       ,  *  tions  for  the 

permanent  body  of  rules  for  the  better  ordering,  army. 
and  methodical  arrangement  of  subjects  of  mil- 
itary concernment,  and  have  a  view  to  establish 
uniformity  in  the  affairs  of  the  army,  by  deter- 
mining to  a  greater  or  less  degree  the  requisite 
minutiae  and  detail.  Their  character,  while 
mandatory,  is  also  ministerial,  and  proceeding 

1  Samuel's  Law  Military,  169. 

I 


20  OP   JURISDICTION. 

CHAPTER     from  the  president  of  the  United  States,  the 
"'         highest  military  authority,  claims  the  utmost  re- 


war. 


spect,  observance,  and  obedience.  It  is  true 
that  they  are  not  in  the  nature  of  a  subordinate 
legislation  to  determine  or  define  offences,  and 
affix  penalties,  for  that  belongs  to  congress  only, 
and  such  are  set  forth  in  the  rules  and  articles , 
of  war ;  but  they  are  of  the  nature  and  charac- 
ter of  orders,  pertaining  to  the  executive  and 
administrative  branches  of  the  service,  and  al- 
though they  denounce  no  punishment  in  terms, 
yet  the  neglect  or  positive  breaches  of  their  re- 
quirements, are  immediately  referable  to  the  es- 
tablished laws  for  the  enforcement  of  discipline, 
to  which  they  appeal  for  an  appropriate  sanc- 
tion. 
The  custom  of  The  custom  of  war  is  the  unwritten,  or  com- 

•HMV 

mon  law  of  an  army.  In  order  to  apply  it  to 
any  particular  case,  it  must  be  certain  and  well 
defined,  and  clearly  not  opposed  to  any  law  or 
regulation.  The  custom  of  war  is  rather  sought 
for,  as  explanatory  of  some  doubtful  question  in 
which,  without  its  aid,  a  decision  might  be  un- 
certain, than  as  a  source  of  authority  by  itself. 
It  must  be  understood  too  that  a  custom  to 
have  any  validity,  besides  having  the  qualities 
above  mentioned,  must  also  be  a  custom  of  the 
army,  for  the  government  of  which  it  is  intended 
to  be  applied.  To  resort  to  a  foreign  military 
service  and  draw  thence  customs  of  war  which 
are  genuine  and  acknowledged  in  such  service, 
might  be  very  illegal  when  introduced  into  our 
own,  as  the  circumstances,  or  conditions  which 
called  them  into  existence,  and  continued  them 
in  being,  in  the  one,  might  be  entirely  wanting 


OP   JURISDICTION.  21 

in  the  other.     It  is  an  authority  which  ought     CHAPTER 

to  be  well  scrutinized  before  allowed  to  have  a         u' 

determining  influence.     The  customs  and  usages 

of  an  army,  are,  when  considered  in  contradis- 

tinction to  the  positive  laws  and  regulations  for 

the  same,  generally  pretty  well  understood,  and 

when  adduced  as  -illustrative  of  the  propriety  of 

the  forms  adhered  to,  or  the  interpretation  of 

acts,  should  have  the  certainty  of  an  established 

fact. 


By  the  96th  article  of  war,  it  is  declared  that  what 

!;  tion  of  persons 

•'  All   officers,   conductors,   gunners,   matrosses,  subject  to  the 

'    rules  and  arti- 

drivers,  or  other  persons  whatsoever,  receiving  ciesof  war. 
pay  or  hire  in  the  service  of  the  artillery,  or 
corps  of  engineers  in  the  United  States,  shall  be 
governed  by  the  aforesaid  rules  and  articles,  and 
shall  be  subject  to  be  tried  by  courts-martial  in 
like  manner  with  the  officers  and  soldiers  of 
the  other  troops  in  the  service  of  the  United 
States." 

The  provision  of  this  article  is  further  ex- 
tended and  declared  in  subsequent  acts  of  con- 
gress for  the  modification  of  the  military  estab- 
lishment ;  and  that  the  forces  authorized,  and 
which  are  described  as  consisting  of  "  officers, 
non-commissioned  officers,  artificers,  musicians, 
and  privates  shall  be  subject  to  the  rules  and 
articles  of  war."1 

The  word  officer  wherever  used  in  the  mil-  The  word  "op- 

.,  i    ,.  .  ,  cer"  in  the  mil- 

itary enactments,  or  regulations,  is  to  be  un- 
derstood  as  signifying  a  commissioned  officer. 
Non-commissioiwd  officer  is  likewise  synony- 
mous  with  the  term  soldier  in  various  portions 

dier. 

»  Act  of  Congress,  March  2d,  1821,  §  II,  —  and  Act  of  Ctra- 
grcss,  July  5,  1838,  §  I. 


22 


OF   JURISDICTION. 


CHAPTER 
II. 


Followers  of 
the  army. 


of  the  rules  and  articles  of  war. — So,  for  in- 
stance, in  the  28th  and  33d  articles.  This  con- 
clusion is  warranted  by  the  intention  of  the  law, 
and  was  many  years  ago  made  the  subject  of 
judicial  decision.  In  the  case  of  Lloyd  vs. 
Wooddall,  1.  Sir  Wm.  Blackstone's  reports,  p. 
29,  it  was  so  decided,  and  one  of  the  judges  ex- 
pressed himself  in  relation  thereto  by  saying, 
"  A  sergeant  is  a  soldier  with  a  halbert,  and  a 
drummer  is  a  soldier  with  a  drum/' 

There  is  another  class  of  persons,  comprising 
a  great  number  of  individuals,  who  are,  under 
particular  circumstances  of  military  service,  held 
amenable  to  martial  law,  and  liable  to  be  tried 
by  courts-martial. 

Armies  when  engaged  in  active  operations, 
are,  at  all  seasons,  accompanied  by  a  large  train 
of  followers,  who  minister  to  its  convenience 
and  comfort.  The  various  description  of  per- 
sons, included  under  that  appellation,  have  grant- 
ed to  them  certain  privileges,  such  as  living 
within  the  boundaries  of  the  camp,  and  protec- 
tion to  their  persons  and  property,  dependent 
necessarily  upon  the  essential  conditions  of  good 
order,  quiet,"  subordination,  and  fidelity  to  the 
state.  The  great  and  important  interest  to  the 
nation  involved  in  the  movements  of  an  army, 
which,  for  certainty  of  action,  uniformity  of  con- 
duct, and  ultimate  success,  must  rely  mainly 
upon  a  system  of  rigid  discipline,  has  caused  the 
rule  which  applies  every  where  else  for  the  pro- 
tection of  the  civilian,  to  be  somewhat  modified, 
or  even,  for  the  time,  to  be  entirely  set  aside ; — 
hence,  the  custom  which  prevails  in  the  field,  of 
trying  persons  not  connected  with  the  army  by 


OP   JURISDICTION.  23 

courts-martial,  must  have  arisen  from,  as  it  de-  CHAPTER 
dends  on,  necessity.1  Were  any  other  principle  "' 
for  the  regulation  of  such  persons  admissible,  it 
is  certain  that  an  army  might  suffer  the  greatest 
detriment,  and  a  way  might  thereby  be  opened 
for  the  easy  communication  with  the  enemy, 
and  the  acquisition  and  transmission  of  daily 
intelligence.  Disorder,  riot,  and  confusion  would 
necessarily  also  prevail :  for  it  would  be  quite 
impossible  to  exact  the  observance  of  different 
police  laws,  by  the  enlisted  soldier  and  the  fol- 
lower of  the  camp,  when  both  parties  are  con- 
fined to  the  same  limits. 

But  it  must  be  remembered  that  the  applica- 
tion of  such  laws  to  such  persons,  would  not  be 
warranted  in  time  of  peace,  under  the  ordinary 
conditions  of  camps  and  garrisons ; — and,  where- 
ever  civil  judicature  is  in  force,  the  followers  of 
the  camp,  who  are  accused  of  crimes  punishable 
by  the  known  laws  of  the  land,  must  be  given 
up  to  the  civil  magistrate. 

There  are,  also,  offences  of  a  purely  military 
kind,  which  may  be  committed  by  such  persons, 
such  as  neglect  of  orders,  or  positive  disobedi- 
ence, or  insolence  to  the  commander,  or  to  a 
commissioned  officer — offences  which  are  of  a 
description,  impossible,  having  a  regard  to  the 
example,  which  such  acts  would  present  to  the 
soldiery,  to  be  overlooked, — and  such  offences 
could  not  be  punished  by  a  civil  court ;  and  yet 
a  court-martial  cannot  take  cognizance  of  them, 
as  the  offender  is  not  properly  amenable  to  its 
jurisdiction.  From  such  a  state  of  things,  many 
inconveniences  and  bad  consequences  have  re- 

1  Simmons  on  Courts  Martial,  p.  20. 


24 


OF   JURISDICTION. 


CHAPTER 
II. 


Butlers. 


suited,  and  frequently,  no  doubt,  led  to  the  in- 
fliction of  summary  punishments,  or  to  an  im- 
proper exertion  of  military  authority  or  law. 
Under  such  circumstances  the  only  guarantee 
of  good  conduct  on  the  part  of  such  individuals, 
would  seem  to  be  in  their  personal  or  pecuniary 
interests  derived  from  the  privileges  of  their  sta- 
tion, and  in  the  power  which  the  commander 
possesses  to  prohibit  their  further  intercourse 
with  the  troops. 

Although  it  has  been  said  above,  that  the 
custom  of  trying  persons  unconnected  with  the 
army,  by  courts-martial,  which  prevails  in  the 
field,  is  dependent  upon  necesssity,  it  must  not 
be  taken  to  mean  that  the  authority  by  which  a 
commander  acts  in  such  cases,  flows  directly 
from  that :  the  necessity  now  spoken  of  gave 
origin  to  the  law  by  which  the  rights  on  one 
side,  and  the  obligations  on  the  other,  were  de- 
legated and  imposed,  and  intended  to  obviate 
the  great  inconveniences  and  dangers  which 
have  been  adverted  to  above. 

By  the  60th  article  of  war  it  is  declared  thai, 
"  All  sutlers  and  retainers  to  the  camp,  and  all 
persons  whatsoever,  serving  with  the  armies  of 
the  United  States  in  the  field,  though  not  enlist- 
ed soldiers,  are  to  be  subject  to  orders,  accord- 
ing to  the  rules  and  discipline  of  war." 

As  circumstances  often  arise  which  implicate, 
in  a  higher  or  lower  degree,  the  class  above 
named,  it  may  not  be  without  use  to  character- 
ize, more  particularly,  the  persons  referred  to  as 
sutlers,  retainers  to  the  camp,  and  persons  serving 
ijoith  the  army. 

A  sutler,  which  is  a  term  familiar  to  the  army, 


OF   JURISDICTION. 


25 


is  a  person  who,  under  the  authority  of  the  mili-  CHAPTER 
tary  commander,  is  permitted  to  reside  in  or  a' 
follow  the  camp  with  food,  liquors,  and  small 
articles  of  military  equipment,  or  others,  for 
general  use  or  consumption.  By  the  general 
regulations  for  the  army,  the  mode  and  author- 
ity for  the  appointment  of  sutlers  are  pointed 
out.  I*,  can  hardly  ever  be  made  a  question  of 
any  difficulty  who  is,  or  who  is  not,  a  sutler 
within  the  meaning  of  the  law.  Without  en- 
deavouring to  find  a  very  exact  and  accurate 
definition  of  the  term,  it  may  be  understood  in 
general  to  mean  one  who  is  a  seller  of  provisions 
or  drinks,  or  other  commodities  or  merchandise 
whatsoever,  and  such  sense  or  signification  has 
been  attached  to  it  by  military  courts,  and  it  is 
sufficiently  comprehensive  to  embrace  every  tra- 
der within  the  boundaries  of  the  camp. 

A  retainer  to  the  camp,  is  one  who  is  con-  Retainer  to  the 
nected  with  the  military  service,  or  business  of 
the  camp,  by  pay,  or  fee.  Under  this  head  may 
be  reckoned  clerks,  drivers,  guides,  and  many 
others,  who,  at  times,  are  employed  in  the  pub- 
lic service,  and  maintained  at  the  public  ex- 
pense. 

Persons  serving  with  the  armies,  may  be  com-  persons  serving 
prehended  with  the  class  last  described  above,  Wlththeanme'- 
but  far  exceeding  it  in  numbers ;  as  it  attaches 
to   all  who  are   bound  in  private   service  by 
wages  from  individuals  who  belong  to  the  army, 
as  to  those  who  serve  by  engagement  for  public 
hire  or  pay.     Under  this  head,  therefore,  are 
ranged  that  numerous  body  known  as  servants, 
and  others  who  derive  their  compensation  from 
a  private  source. 

4  '   • 


26 


OF   JURISDICTION. 


CHAPTER 
"' 


Necessity  of 


These  various  description  of  persons,  as  has 
_  been  remarked,  enjoy  certain  privileges  in  con- 
sideration of  the  advantages,  convenience,  &c., 
which  they  offer  to  the  soldiers.  They  move 
with  the  camp,  have  their  stations  in  it,  and  are 
confined  in  their  transactions  with  the  military 
state;  and  it  is  evident,  therefore,  that  their 
quiet  and  subordination  is  intimately  and  neces- 
sarily connected  with  that  of  the  soldiery. 

Mixed  as  they  are  in  their  situation,  in  their 
-  business,  and  interests  with  the  military  body,  it 
becomes  necessary  that  they  should  be  governed 
by  the  same  laws  made  common  to  both ;  and 
under  no  other  system  could  the  identity  of  prin- 
ciple be  practicable  as  the  ruling  power.  Sut- 
lers and  camp  follmcers  entering  into  a  new  so- 
ciety, having  peculiar  laws  of  its  own,  by  their 
own  voluntary  act,  must  conform  to  those  laws, 
as  such  is  an  understood  condition  of  their  ad- 
mission :  they  are  therefore  liable  to  receive  the 
orders  of  their  military  superiors,  and  are  to  act 
in  conformity  thereto,  though  rather  in  a  civil 
than  in  a  military  capacity.  These  persons  can- 
not be  called  upon  to  perform  military  duty ;  but 
in  all  that  relates  to  the  maintenance  of  the 
peace  and  order  of^  the  camp,  the  observance  of 
rights,  public  or  private,  the  arrangement  of  their 
goods,  horses  and  carriages,  and  in  matters  per- 
taining to  the  police,  safety  or  convenience  of 
the  camp,  they  are  as  much  liable  to  military 
command,  and  punishment  for  the  non-observ- 
ance of  the  same,  as  the  enlisted  soldier ;  though 
they  are  not  compellable  to  perform  the  actual 
duties  of  a  combatant.  It  becomes  then  a  mat- 
ter of  importance  to  these  persons  that  they 


. 

OF   JURISDICTION.  27 

should,  upon  entering  into  such  new  relations  of     CHAPTER 
life,  make  themselves  acquainted  with  the  orders         "• 
and  regulations  by  which  they  are  governed ;  for 
it  is  a  principle  in  military,  as  well  as  in  civil 
communities,  that  ignorance  of  the  law  is  no  ex- 
cuse for  offences. 

Prior  to  the  year  1818,  there  had  been  much  cadets  of  the 
doubt  expressed  as  to  the  amenability  of  cadets  emy^bjea  to 
of  the  U.  S.  Military  Academy  to  military  law;  articles6^  war. 
and  so  strong  was  the  opinion  that  in  the  year 
above  mentioned  a  general  court-martial,  con- 
sisting of  officers  of  rank,  experience  and  high 
intelligence,  declined  taking  cognizance  of  char- 
ges preferred  against  certain  cadets,  on  the  ground 
that  the  court  had  no  legal  jurisdiction  over  such 
persons.  The  question  was  submitted  to  the 
proper  legal  department  of  the  government,  and 
the  then  attorney  general,  William  Wirt,  Esq., 
having  given  the  subject  a  full  examination,  sub- 
mitted his  opinion  with  an  elaborate  argument, 
by  which  the  point  has  ever  since  been  settled ; 
and  courts-martial  have  accordingly  exercised  a 
full  jurisdiction  over  cadets,  as  being  subject  to 
the  rules  and  articles  of  war. 

Another  question  which  involves  high  inter- 
ests, both  of  individuals  and  the  government, 
has  been  frequently  made  the  subject  of  conver- 
sation by  officers  of  the  military  service ;  and  as 
it  is  one  upon  which  no  precise  decision  by 
courts-martial  has  been  established,  or  at  least 
treated  of  in  any  work  on  military  law,  the  wri- 
ter deems  it  proper  to  enter  somewhat  minutely 
into  its  investigation. 

It  has  been  questioned,  whether  a  court-mar- 
tial can  exercise  jurisdiction  over  a  person  after 


28  OP   JURISDICTION. 

CHAPTER  the  expiration  of  his  term  of  service,  for  au 
"•  offence  committed  while  acting  in  the  capacity 
of  a  soldier  or  seaman,  prior  to  such  period, 
'commi?  r^ne  argument  urged  against  such  power  is  prin- 
cipally,— that  unless  there  be  some  express  stat- 
utory provision  giving  the  right,  the  military 
authority,  of  every  description,  ceases  necessa- 
rily, with  the  period  for  which  the  soldier  or 
seaman  had  enlisted  or  engaged  to  serve  in  a 
military  capacity;  and  that  if  such  person  be 
liable  at  all  after  the  expiration  of  his  term  of 
service,  he  is  liable  in  all  places,  at  all  times,  and 
to  all  officers  who  liave  ever  commanded  him. 

The  question  is  not  whether  a  law  giving  such 
authority  would  not,  with  proper  limitations,  be 
proper  and  beneficial,  but  it  is  urged  that  as 
there  is  no  express  sanction  given  by  law  for  the 
exercise  of  such  jurisdiction,  it  cannot,  there- 
fore, be  claimed  by  inferences  and  arguments 
from  convenience  and  expediency.  Every  man, 
it  is  said,  who  is  not  bound  by  military  engage- 
ments, and  the  laws  which  govern  those  com- 
munities, is  only  subject  to  trial  for  any  imputed 
offence  by  the  common  law  courts  of  the  land ; 
and  that  courts-martial  are  divested  of  all  juris- 
diction over  such  persons,  and  therefore  cannot 
enter  into  the  question  of  guilt  or  innocence, 
and  are  not  the  proper  tribunals  to  settle  such 
fact. 

Such  are  the  general  objections  made  to  the 
assumption  of  the  authority  in  question ;  to  which 
it  is  replied : — 

The  general  principle  of  law  is,  that  when- 
ever any  act  is  prohibited  under  a  penalty,  and 
no  limitation  affixed  to  a  prosecution,  the  of- 


OF   JURISDICTION.  29 

fender  is  .amenable  at  any  time  during  his  life :  CHAPTER 
and  were  this  principle  not  applicable  to  mil-  "• 
itary  persons,  it  is  evident  that  offenders  would 
frequently  escape  punishment,  to  the  great  de- 
triment of  the  public  service,  because  there  are 
no  other  than  courts-martial  which  can  take 
cognizance  of  particular  crimes.  It  would  also 
operate  much  to  the  prejudice  of  the  public 
were  offenders,  in  all  cases,  to  be  brought  to 
trial  at  particular  periods,  within  the  statute  of 
limitation,  if  any  exist — and  thus  limit  the  au- 
thority to  the  mere  time  of  the  existence  of  a 
particular  exigency,  when  it  might  be  thereby 
unable  .to  take  cognizance  of,  and  decide  upon  a 
single  offence. 

The  laws  for  the  government  of  the  army  and 
navy  have  in  every  instance,  where  crimes  or  of- 
fences are  specified,  or  where  a  general  descrip- 
tion of  them  and  authority  to  notice  is  given,  as 
in  the  99th  article  of  war,  and  the  32nd  article 
for  the  government  of  the  navy,  said,  that  the 
same  shall  be  punished  as  a  court-martial  shall 
direct. 

Here  is  authority  given  to  such  courts  to 
take  cognizance  of  the  class  of  crimes  indicated, 
and  to  punish  either  by  the  arbitrary  declara- 
tion of  the  law,  or  by  the  discretion  vested 
in  them.  If  then  the  time  is  not  limited,  by 
any  statute,  when  their  jurisdiction  of  these  of- 
fences ceases,  it  would  seem  to  be  putting  at  too 
great  hazard,  the  interest,  the  safety,  and  the  re- 
putation and  honor  of  the  military  and  naval 
service,  to  permit  offenders  to  escape  all  punish- 
ment, and  thus  encourage  insubordination  and 
violence,  asserting  a  privilege  for  the  criminal, 


30 


OP   JURISDICTION. 


CHAPTER 

H. 


Case  of  William 
Walker,  sea- 
man. 


because,  he  had  been  prudent  enough  to  restrain 
his  temper,  or  regulate  his  conduct  until  no  ju- 
dicial notice  could  by  possibility  be  taken  of  his 
offences  before  the  expiration  of  his  term  of  ser- 
vice! 

If  the  object  of  these  laws  was  intended  to 
enforce  obedience,  and  to  promote  discipline,  and 
ensure  order  and  safety,"  there  can  appear  but 
little  ground  to  doubt  the  jurisdiction  of  courts- 
martial  in  cases  like  those  now  considered. 
Such  object  is  apparent  and  admitted,  and  there- 
fore the  amenability  of  one  for  the  commission 
of  military  crime,  to  the  authority  of  a  special . 
tribunal  created  for  the  trial  and  punishment  of 
such  offenders,  is  not  to  be  changed  because  be- 
tween the  commission  of  the  offence  and  the 
time  of  the  assembling  of  the  court,  he  may 
have  changed  his  official  relations  or  professional 
character. 

A  case,  arising  in  the  naval  service,  in  which 
the  principles  of  the  law  embraced  in  the  con- 
sideration of  the  question  before  us,  was  adju- 
dicated in  1830 ; — and  as  it  is  explanatory  of 
the  subject,  it  is  quoted  with  the  opinion  of 
the  court. 

"  Supreme  Judicial   Court — Suffolk    County, 

Massachusetts,  25th  January,  1830. 

WILLIAM  WALKER  on  a  writ  of  habeas  corpws, 
vs. 

CHARLES  MORRIS,  ESQ.,  commanding  naval  of- 
ficer, Boston  Station. 

By  the  return  on  the  writ  it  appeared  that  the 
petitioner,  William  Walker,  enlisted  into  the 
navy  of  the  U.  S.,  on  the  5th  day  of  January 


OP   JURISDICTION.  31 

1829,  for  the  term  of  one  year ;  and  that  on  the  CHAPTER 
3rd  day  of  January  1830,  the  said  William  "• 
Walker  being  still  a  seaman  in  the  navy  com- 
mitted the  crimes  and  offences  of  "  disobedi- 
ence of  orders" — "  uttering  mutinous  words" — 
and  "  raising  a  weapon  against  his  superior  of- 
ficer, while  in  the  execution  of  the  duties  of  his 
office." — Whereupon  he  was  put  in  confinement 
by  the  respondent,  captain  Morris,  and  on  the 
day  following,  charges  were  preferred  against 
him  to  the  secretary  of  the  navy,  and  a  court- 
martial  for  his  trial  ordered  on  the  13th,  which 
court  was  duly  convened. 

Upon  the  return  of  the  writ,  the  counsel  for 
the  petitioner,  moved  the  court  that  he  should 
be  discharged  and  go  without  day.  This  mo- 
tion was  resisted  by  the  counsel  for  the  re- 
spondent, and  the  arguments  of  either  party, 
which  were  substantially  the  same  as  those 
given  in  the  foregoing  pages,  having  been  heard 
by  the  court,  the  following  decision  was  given. 

WILDE,  J.  "  Although  I  have  entertained  no  opinion  of  MI> 
doubt  respecting  the  case,  yet  as  it  is  of  great Jus 
importance  to  the  petitioner,  and  may  materially 
affect  the  discipline  of  the  navy,  in  which  the 
public  have  so  deep  an  interest,  I  have  thought 
proper  to  consult  with  my  brethren,  the  chief 
justice  and  judge  Putnam,  and  we  all  concur  in 
the  opinion  which  I  will  now  deliver. 

"  The  motion  for  the  petitioner's  discharge 
from  the  custody  of  captain  Morris  is  grounded 
upon  the  objections,  that  neither  by  the  rules  for 
$he  regulation  of  the  navy,  nor  by  any  othei 
statute,  is  it  provided  that  any  seaman  should 
be  detained  beyond  the  Deriod  of  his  enlistment 


32  OP   JURISDICTION. 

CHAPTER  for  any  purpose  or  cause  whatever :  that  how- 
"•  ever  reasonable  or  convenient  it  might  be  that 
the  law  should  be  otherwise  under  the  circum- 
stances of  this  case,  yet  unless  it  is  so  provided 
by  express  statute,  his  officers  have  no  authority 
to  detain  him  for  trial,  or  for  any  other  purpose 
beyond  the  term  of  his  enlistment;  and  that 
such  authority  is  not  to  be  created  by  implica- 
tion. If  this  is  the  clear  construction  of  the  act 
for  the  government  of  the  navy,  we  must  be 
bound  by  it,  whatever  may  be  the  consequences, 
and  however  injurious  they  may  be  to  the  ser- 
vice of  the  navy.  That  such  a  construction 
would  be  highly  injurious  to  the  service  and  dis- 
cipline of  the  navy  is  not,  and  indeed  cannot  be 
denied.  For  many  of  the  offences  created  by 
the  act  for  the  better  government  of  the  navy 
are  not  punishable  at  common  law,  and  of  which 
no  other  courts,  excepting  courts-martials  can 
take  cognizance  :  so  that  if  any  of  these  offences 
should  be  commited  by  any  seaman  immediate- 
ly before  the  expiration  of  his  term  of  service, 
he  would  escape  with  impunity.  He  might  be 
guilty  of  the  grossest  insults  to  his  officers  ;  of 
disobedience  to  orders  in  the  most  critical  mo- 
ment of  danger  to  the  ship ;  and  in  the  hour  of 
battle  he  might  refuse  to  fight,  and  there  would 
be  no  power  to  punish  him.  Or  he  might  at 
any  time  be  guilty  of  desertion,  and  if  he  could 
avoid  an  arrest  during  his  term  of  enlistment, 
he  might  set  the  law  at  defiance.  Now  it  is  im- 
possible to  believe  that  a  construction  of  the  sta- 
tute involving  such  disastrous  consequences  can 
be  conformable  to  the  meaning  and  intention  of 
congress :  nor  do  the  words  of  the  statute  re- 


OF   JURISDICTION.  2 

quire  such  a  construction.  It  is  true  that  a  sea-  CHAPTER 
man  is  .not  bound  to  fio  service  after  the  term 
of  his  enlistment.  But  within  that  term,  he  is 
bound  to  observe  the  rules  and  regulations  pro- 
vided by  law  for  the  government  of  the  navy, 
and  is  punishable  for  all  crimes  and  offences 
committed  in  violation  of  them  during  his  term 
of  service.  There  is  no  limitation  of  time  with- 
in which  he  is  to  be  prosecuted  and  tried  for 
such  offences,  but  if  there  were,  it  would  be  suf- 
ficient to  show  that  the  prosecution  was  com- 
menced within  the  time  of  limitation. 

"  In  this  case  the  petitioner  was  arrested  or 
put  in  confinement,  and  charges  were  preferred 
against  him  to  the  Secretary  of  the  Navy,  before 
the  expiration  of  the  time  of  his  enlistment: 
and  this  was  clearly  a  sufficient  commencement 
of  the  prosecution  to  authorise  a  court-martial 
to  proceed  to  trial  and  sentence — notwithstand- 
ing the  time  of  service  had  expired  before  the 
court-martial  had  been  convened.  A  case  some- 
what similar  has  been  decided  in  this  court 
under  '  the  act  making  further  provision  for  the 
punishment  of  convicts  sentenced  to  hard  labor, 
and  the  better  regulation  of  the  state's  prison.3 
By  this  act  the  information  is  to  be  filed  and 
the  convict  brought  in  for  trial  or  sentence  dur- 
ing the  time  of  his  imprisonment  on  his  prior 
conviction.  A  case  occurred  in  which  an  in- 
formation against  several  convicts  was  filed, 
they  were  thereupon  brought  in  for  trial  before 
their  term  of  imprisonment  expired.  But,  be- 
fore their  trial  could  be  had,  their  term  of  im- 
prisonment and  confinement  to  hard  labor  had 
expired,  and  it  was  objected  that  the  court 

5 


34  OP   JURISDICTION. 

CHAPTER  could  not  then  proceed  in  the  trial.  But  it 
11  •  was  held,  that  as  the  prosecution  was  com- 
menced within  the  time  limited,  the  jurisdic- 
tion of  the  court  attached,  and  that  they  might 
regularly  and  legally  proceed  to  trial  and  sen- 
tence. It  is  not,  therefore,  necessary  to  decide 
in  this  case,  whether  a  prosecution  against  a 
seaman  in  the  navy  for  an  offence  committed 
during  his  term  of  service,  can  be  sustained, — 
the  prosecution  not  having  been  commenced 
until  after  his  term  of  service  had  expired. 

But  the  case  of  Lord  George  Sackville,  as 
reported  by  Tytler  in  his  treatise  on  courts- 
martial,  goes  fully  to  support  the  affirmative 
of  this  question  also.  It  appears  that  doubts 
arose  on  that  trial  whether,  as  the  defendant 
had  been  dismissed  from  his  majesty's  service 
previously  to  the  prosecution  against  him,  he 
was,  by  the  words  of  the  mutiny  act,  subject 
to  the  jurisdiction  of  the  court;  upon  which, 
that  question  was  referred  to  the  twelve  judges, 
who  certified  that  under  the  circumstances  of 
the  case,  they  saw  no  reason  to  doubt  the  juris- 
diction of  the  court  martial. 

"  It  is  true  that  this  trial  was  had  upon  the 
application  of  the  party  accused,  who,  having 
been  dismissed  from  the  service  during  his  ab- 
sence from  England,  thought  it  was  due  to  his 
reputation,  upon  his  return,  to  demand  an  in- 
vestigation of  his  conduct,  and  relieve  himself 
from  disgrace. — And  I  do  not  perceive  that  this 
circumstance  can  affect  the  principle  of  the  de- 
cision ;  for,  if  the  court-martial  had  no  jurisdic- 
tion, it  is  very  clear  that  the  consent  of  the 
accused  could  not  confer  it.  It  is,  however,  for 


OF   JURISDICTION.  35 

the  reasons  already  given,  unnecessary  to  decide     CHAPTEB 
on  this  point.  .  "• 

"  In  this  case  there  can  be  no  doubt,  I  think, 
that  the  court-martial  have  jurisdiction,  and 
that  they  may  legally  proceed  in  the  trial,  OD 
the  charges  stated  in  the  return.  The  peti- 
tioner must  therefore  be  remanded  to  the  cus- 
tody of  Captain  Morris."1 

Upon  this  decision  the  petitioner,  William 
Walker,  was,  by  the  court-martial,  tried  upon 
the  charges  as  specified  in  the  return  to  the 
writ. 

In  reference  to  the  question  discussed  in  the  Proceedings 

.  .  must  be  com- 

foregomff  case,  the  writer,  without  entering  into  menced  against 

.         .  „  -r  the  prisoner  be- 

the  examination  of  now  far  the  case  of  Lord  fore  the  expira- 

.  ,          ,  tion  of  his  term 

George  Sackville  is  to  be  considered  a  prece-  of  service. 
dent  for  the  American  service,  or,  in  what  man- 
ner the  special  tenure  of  office,  growing  out  of 
the  respective  rights,  powers,  or  prerogatives 
of  the  president  of  the  United  States,  and  the 
English  sovereign,  might  affect  the  liability  of 
a  commissioned  officer  to  military  trial,  would 
add  the  expression  of  his  belief  that  the  prin- 
ciples stated,  and  the  decision  made  by  the 
court  to  whom  the  case  was  submitted,  are 
eminently  reasonable  and  just. 

It  must  be  borne  in  mind,  however,  that  in 
all  such  cases  which  may  occur,  the  decision 
quoted  goes  only  to  maintain  the  prosecution, 
if  commenced  before  the  time  at  which  the 
prisoner  is  entitled  to  claim  his  discharge.  If 
once  lawfully  discharged  the  service,  he  could 
not  afterwards  be  arrested,  or  held  amenable 

i  This  case  is  reported  in  the  American  Jurist,  April  No.  of 
1830. 


36  OF   JURISDICTION. 

CHAPTER     to  trial  by  a  military  court,  for  a  military  offence 
"•         committed  during  the  period  of  his  military  ser- 
vice. 

In  concluding  this  chapter,  it  is  proper  to 
remark,  that  it  has  been  laid  down  as  a  maxim, 
by  high  legal  authority,1 — that  no  person  im- 
pressed with  a  military  character  by  an  act 
of  congress,  can  be  held  amenable  to  the  rules 
and  articles  of  war,  "without  a  positive  pro- 
vision to  that  effect." 

1  Mr.  Wirt,  Opinions,  p.  204. 


CHAPTER  III. 

OP  THE  DIFFERENT  KINDS  AND  COMPOSITION  OP 
COURTS  MARTIAL. 

MILITARY  offences  or  crimes,  varying  much  CHAPTER 
under  the  circumstances  in  which  they  are  com- 
mitted, as  to  degree  of  turpitude,  it  became  ne- 
cessary, as  a  matter  of  convenience  to  the  ser- 
vice, as  well  as  of  justice  to  individuals,  to  con- 
stitute courts-martial  of  higher  and  lower  powers, 
for  the  investigation  of  all  acts  which  might,  in 
their  various  shades  of  criminality,  impugn  the 
rules  of  military  discipline. 

Courts-martial  are  therefore  defined  as  either 
general,  regimental,  or  garrison.  The  court  de- 
nominated a  general  court-martial  is  of  superior 
attributes,  and  claims  jurisdiction  over  all  acts 
of  a  military  nature,  that  may  be  committed  by 
military  persons;  and  its  punitive  powers  are 
necessarily  co-extensive  with  this  right. 

Commissioned  officers   are  not  amenable  to  Commissioned 

.  .          officers    cannot 

trial  by  any  other  than  a  general  court-martial,  be  tried  except 
and  it  is  provided  that  they  shall  not  be  tried  by  court  martial. 
officers  of  an  inferior  rank,  if  it  can  be  avoided.1 
It  is  also  declared  that  general  courts-martial 
may   consist  of  any  number  of  commissioned 
officers,  from  five  to  thirteen,  inclusively;  but 
they  shall  not  consist  of  less  than  thirteen,  where 
that  number  can  be  convened  without  manifest 
injury  to  the  service.8 

i  75  Article  of  War.  *  64  Article  of  War. 


38  COMPOSITION   OF    COURTS    MARTIAL. 

CHAPTER  In  interpreting  the  words  "  commissioned  offi- 
cers" as  applicable  to  persons  eligible  as  mem- 
bers of  a  general  court-martial,  it  has  been  the 
'.  custom  of  service  to  exclude  from  that  class,  all 
surgeons,  assistant-surgeons,  and  paymasters,  and 
indeed  every  one  who  is  not  clothed  with  mili- 
tary rank  proper,  and  having  thereby  an  inherent 
right  of  command.  This  is  thought  to  be  in 
strict  consonance  with  the  purposes  intended  by 
law,  and  can,  in  no  respect,  derogate  from  the 
rights  of  such  persons,  or  put  in  jeopardy  any  of 
their  interests.  It  would  certainly  seem  some- 
what anomalous  to  institute  a  court  for  the  trial 
of  military  offences,  and  appoint  as  judges,  per- 
sons who,  from  their  duties  connected  with  the 
army,  from  their  previous  pursuits  and  educa- 
tion, and  the  manner  in  which  they  are  introdu- 
ced into  the  service,  can  have  but  a  very  limited 
knowledge,  and  doubtful  views  of  military  con- 
duct. This  objection,  it  is  true,  may,  in  some 
degree,  and  for  a  limited  time,  be  also  urged 
against  the  junior  subalterns  of  the  army ;  but  it 
must  also  be  remembered  that  such  condition  is 
of  necessity,  growing  out  of  the  order  of  mili- 
tary life,  and  is  but  of  temporary  duration  in 
each  particular  case.  In  opposition  to  the  prac- 
tice obtaining,  it  has  been  urged  by  that  class  of 
officers  who  are  excluded  from  sitting  as  mem- 
bers of  general  courts-martial,  that  the  operation 
of  the  rule  is  partial  and  unequal,  and  that  it 
appears  unjust  that  they,  as  members  of  the 
military  body,  should  be  made  obnoxious  to  the 
authority  of  a  military  court,  while,  at  the  same 
time,  they  are  denied  the  privilege  of  ever  being 
considered  as  of  its  component  elements.  Now 


COMPOSITION    OP   COURTS    MARTIAL.  39 

this  objection  has  but  little  weight  if  fully  con-  CHAPTEB 
sidered.  The  purpose  intended  by  the  creation  m>  _ 
of  military  courts,  was  for  the  regulation  of  the 
conduct  of  military  persons,  founded  in  policy 
for  the  public  good,  and  having  no  reference  to 
official  gratification,  or  pretension,  and  totally 
irrespective  of  persons.  If  the  questions  to  be 
decided  before  those  courts  in  the  cases  of  such 
persons,  were  purely  of  a  professional  or  per- 
sonal nature,  the  interests  involved  would  be  dif- 
ferent from  what  they  now  are,  and  might  autho- 
rise another  view  of  proceeding ;  but  such  is  not 
the  case ;  and  matters  touching  discipline,  being 
the  object  for  judgment,  it  should  rather  be  con- 
sidered as  an  advantage  than  as  a  prejudice  to 
them,  that  military  courts  are  constituted  as  they 
are  at  present. 

The  substance  of  the  objection,  if  endued  with 
any  validity  in  their  case,  as  the  principles  of 
justice  are  general  and  uniform,  would  equally 
apply  to  the  great  mass  of  the  community,  and 
particularly  to  the  rank  and  file  of  the  army ; 
and  society  would  present  a  very  remarkable 
state,  in  which  it  was  found  necessary  to  sanc- 
tion a  proceeding,  or  acknowledge  a  principle, 
which  was  daily  inflicting  a  wrong  upon  every 
member  of  it. 

But,  if  it  is  true,  that  questions  pertaining  to 
the  particular  profession,  or  business  of  that  class 
of  officers,  are  never,  except  so  far  as  they  are 
subject  to  some  clearly  defined  rule  of  the  reg- 
ulations, made  the  subject  for  inquiry  and  judg- 
ment by  courts-martial,  it  is  quite  different  in  the 
case  of  regimental  or  staff  officers,  whose  duties 
require  them  to  command  or  act  with  troops. 


40  COMPOSITION    OP    COURTS    MARTIAL. 

CHAPTER  Here  technical  knowledge  and  opinions  are  re- 
m'  quired,  which  can  only  be  possessed,  and  with 
propriety  expressed  by  the  same  class  of  persons, 
and  constitute,  as  has  been  exemplified  in  many 
instances,  the  whole  means  of  investigation  and 
decision.  If  therefore,  another  body  of  men, 
not  clothed  with  such  attributes  for  judgment, 
were  called  upon  to  exercise  such  functions,  the 
public  interests,  as  well  as  individual  reputation 
would  be  endangered ;  and  it  would  be  no  suffi- 
cient answer  to  say,  that  in  such  cases  they 
should  not,  or  would  not  be  detailed  as  members 
of  a  court-martial;  because  it  can  be  affirmed 
with  more  certainty,  that  if  they  are  considered, 
under  the  law,  eligible  to  such  a  duty,  in  any 
one  case,  so  are  they  equally  eligible  for  the  like 
duty  in  every  other  case,  which  may  arise. 

The  rule  which  has  been  adopted,  and  for  a 
long  time  received  the  sanction  of  the  army, 
should  be  continued,  as  it  seems  founded  in  pro- 
priety and  the  true  principle  of  administrative 
justice.  While  on  the  one  hand  it  abridges  no 
rights,  nor  puts  at  hazard  any  interests,  so  on 
the  other,  it  assures  safety  to  reputation  as  well 
as  to  person  ;  gives  confidence  in  the  pursuit  and 
execution  of  professional  objects  and  duties,  and 
satisfies  the  great  body  of  the  military  profession 
that  praise  or  censure,  will  be  meted  out  under 
the  observance  of  a  consistent  and  necessary 
military  rule. 

This  question  however  has  been  decided 
some  years  ago,  upon  the  same  principles  which 
are  set  forth  above,  and  the  rule  seems  so  con- 
sistent with  a  right  reason,  that  it  should  not 


COMPOSITION    OP    COURTS    MARTIAL.  41 

again  be  permitted  to  be  disturbed  by  a  contrary     CHAPTER 
practice.  In> 

The  very  question  now  under  discussion, 
arose  in  the  progress  of  a  prosecution  in  the 
naval  service,  and  was  referred  to  the  Hon.  John 
McPherson  Berrien,  Attorney  General,  for  his 
opinion  thereon,  which  under  date  of  November 
6,  1829,  was  thus  stated  : — 

"As  to  the  right  of  chaplains,  surgeons,  &c. ;  opinion  of  at- 
or  non-combatants,  to  sit  on  courts-martial, — if 
we  look  to.  tlie  origin  of  courts-martial  in  Eng- 
land (from  whence  we  borrow  them)  it  would 
be  difficult  to  believe  that  a  tribunal,  which  has 
succeeded  there  to  the  ancient  court  of  chivalry, 
could  be  composed  of  others  than  military  men. 
And  if  we  consider  the  nature  of  the  subjects, 
which  are  generally  submitted  to  the  decision 
of  these  tribunals,  the  knowledge  of  military 
discipline  and  usage,  and  frequently  of  tactics, 
(which  is  indispensable  to  those  who  preside 
there)  it  would  seem  that  non-combatants,  whose 
duties  do  not  lead  them  to  acquire  this  species 
of  information,  and  who  have  no  rank,  either 
real  or  assimilated,  could  not  be  deemed  compe- 
tent to  sit  on  courts-martial."1 

There  is  such  an  evident  propriety  in  the  rea- 
sons set  forth  in  the  above  cited  opinion,  that 
the  writer  cannot  hesitate  to  adopt,  and  lay 
down  the  rule  in  accordance  therewith. 

There  was  at  one  period  a  question  raised, 
whether  a  cadet,  breveted  to  a  lieutenancy,  was  a 
commissioned  officer,  and  as  such  eligible  to  sit 
as  a  member  of  a  court-martial.  It  was  deter- 
mined by  an  opinion  of  the  attorney  general  in 

1  Opinions,  p.  737. 

6 


42  COMPOSITION    OP    COURTS    MARTIAL. 

•j 

CHAPTER     August,  1829,1  that  such  person  was  not  a  com- 
111  •         missioned  officer  within  the  meaning  of  the  sixty 
fourth  (64th)  article  of  war,  and  therefore  could 
not  be  a  member  of  a  court-martial. 
u.       This  opinion  was  never  fully  acceded  to,  and 


tenancy  is  eii-  jf   allowed    a   practical    operation   would   fre- 

gible  to  sit  as  a  * 

member  of  a     quentlv  stand  as  a  hindrance  to  the  ordinary 

court  martial.        »  J 

course  of  service.  The  doubts  which  were  en- 
tertained upon  this  subject  have  varied  from 
time  to  time,  but  latterly  have  been  definitively 
settled  by  general  orders  no.  11,  April  15,  1845, 
under  the  authority  of  the  war  department,  — 
which  declares,  that  a  cadet  or  "graduate,  so 
commissioned  and  attached,  becomes  an  officer 
of  the  lowest  grade  in  the  corps,  and  is  entitled 
to  all  consideration  as  a  commissioned  officer." 
The  appointing  rpne  numj,er  of  officers  necessary  for  the  com- 

power  has  the  * 

2rSe°thte°de  position  of  a  general  court-martial  is  specified 
number  of  mem-  by  the  64th  article  of  war  ;  but  in  determining 
that  number,  the  officer  empowered  to  appoint 
the  same  is  invested  with  a  discretionary  au- 
thority; and  the  like  discretion  is  given  to  fix 
the  hours  of  session  of  the  court,  or  for  the  pro- 
ceedings or  trial,  and  the  rank  of  the  officers 
relative  to  that  of  the  accused,  of  which  it  is 
composed. 

It  has  frequently  been  complained,  that  the 
number,  and  rank  of  the  members  of  a  general 
court-martial  in  particular  cases,  did  not  reach 
the  highest  limit  contemplated  by  the  law  ;  and 
officers,  at  times,  for  such  causes,  have  been 
ready  to  question  the  propriety  or  legality  of 
the  act  of  him  who  appointed  the  court.  They 
who  have  thus  thought,  have  drawn  their  con- 

1  Opinions,  p.  709. 


COMPOSITION   OP    COURTS    MARTIAL.  43 

• 

elusions  from  facts  within  their  own  observation,  CHAPTER 
and  applied  them  to  what  they  conceived  the  III- 
state  of  the  service  would  permit.  But  in  so 
doing,  it  does  not  appear  to  have  occurred  to 
them  that  they  were  assuming  a  discretion  to 
judge  of  the  proceedings  of  a  superior,  not  be- 
longing to  their  position.  The  doctrine  of  the 
exercise  of  a  discretionary  power  is  plain  and 
simple.  He-  who  is  clothed  with  such  authority, 
is,  made  thereby  the  judge  of  circumstances 
which  may  control  its  operation,  and  if  it  be 
used  in  good  faith,  without  fraudulent  or  corrupt 
intentions,  its  exercise  is  sufficiently  legal.  The 
question  of  opinion,  as  to  the  state  of  the  ser- 
vice, which  may  or  may  not  permit  the  detail  of 
a  greater  number  than  that  fixed  for  the  court, 
is  not  to  be  brought  into  controversy.  Such 
opinion  may,  it  is  true,  be  a  mistaken  one,  but 
if  it  be  an  honest  expression  of  belief,  that  is 
all  the  law  requires.  To  impugn  then  the  act 
of  the  appointing  power,  it  must  be  shown,  not 
by  the  accidental  result  of  a  trial,  or  the  prepon- 
derance of  opinion,  but  by  clear  and  indisputa- 
ble evidence,  that  such  act  was  not  only  mista- 
ken, or  erroneous  as  to  fact,  but  wilfully  corrupt 
in  purpose.  In  the  varied  circumstances  in 
which  an  army  operates,  and  the  numberless 
sudden  and  unforeseen  contingencies,  which  af- 
fect military  service,  must  be  sought  the  reasons 
which  induced  such  a  trust  to  military  com- 
manders. If  a  rule  were  to  be  established  for 
the  administration  of  military  justice,  so  fixed 
as  never  to  bend  or  yield  to  the  necessities  of 
the  service,  it  would  but  be  making  a  great  pub- 
lic interest  subservient  to  mere  individual  con- 


44 


COMPOSITION    OP    COURTS    MARTIAL. 


CHAPTER 
III. 


The  direction 
given  for  the 
number  to  com- 
pose a  court,  is 
merely  direc- 
tory of  the  offi- 
cer appointing. 


venience,  and  thereby  be  brought  in  direct  oppo- 
sition to  the  purposes  for  which  such  individuals 
are  engaged  to  serve.  There  can  be  but  little 
fear  that  the  attainment  of  the  ends  for  which 
military  tribunals  are  organized,  will  fail  under 
the  present  system,  more  frequently,  than  if  a 
greater  number  of  voices  were  called  upon  to 
decide ;  or  at  least,  that  there  will  be  wanting  a 
just  appreciation  of  the  duties,  and  solemnity 
of  the  obligations  by  which  they  ought  to  be 
controlled.  To  establish  a  mode  of  judicial  pro- 
ceeding, which  might  dissipate  all  error,  and 
make  wilful  injustice  impossible,  is  certainly  be- 
yond the  reach  of  human  capacity ;  and  mili- 
tary, like  civil  bodies,  must  equally  repose  in  the 
same  principles  and  sanctions,  to  which  the  un- 
derstandings and  consciences  of  all  men  appeal. 

This  interpretation  of  the  law  has,  however, 
been  formally  and  judicially  expressed,  in  an 
opinion  delivered  by  the  late  Mr.  Justice  Story 
of  the  supreme  court,  in  the  case  of  Martin  vs. 
Mott,  reported  in  12  Wheaton,  34,  35,  and  it  was 
then  decided,  that  "  the  direction  contained  in 
the  act  of  1806,  that  a  general  court-martial 
'  shall  not  consist  of  less  than  thirteen,  when 
that  number  can  be  convened  without  manifest 
injury  to  the  public  service,'  is  merely  directory 
of  the  officer  appointing  the  court ;  and  his  de- 
cision as  to  whether  that  number  can  be  con-r 
vened  without  manifest  injury  to  the  service, 
being  in  a  matter  subjected  to  his  sound  discre- 
tion, must  be  conclusive."  ?l*oi 

To  meet  the  necessities  of  service,  it  is  pro- 
vided that  officers  of  the  marines,  and  officers 
of  the  land  forces  shall  be  associated  for  the 


COMPOSITION    OF    COURTS    MARTIAL. 


purpose  of  holding  courts-martial,  and  in  such     CHAPTER 
cases,  the  orders  of  the  senior  officer  of  either        m* 
corps,  who  may  be  present  and  duly  authorised, 
shall  be  received  and  obeyed.1    But  whenever 
the  officers  and  soldiers  of  any  troops,  militia 
or  others,  are  duly  mustered  and  in  pay  of  the  courts  m&nlai- 
United  States,  and  serving  in  conjunction  with 
the  regular  forces,  the  officers  of  these  different 
forces  cannot  be  associated  for  the  trial  of  an 
officer  or  soldier  of  the  militia.    In  such  cases  Mmtia  when  in 
the  court-martial  must  be  composed  entirely  of 
officers  of  the  militia.*    It  would  appear  but 
just  that  the  rule  should  be  reciprocal ;— for,  "^  officers' 
if  the  militia  are  not  to  be  subjected  to  the 
judgment  of  officers  of  the  regular  service,  it 
is  very  inconsistent  to  measure  the  opinions 
and  acts  of  the  latter  by  the  judgment  of  the 
former.      The  reason  of  the  law  would,   un- 
doubtedly, exclude  militia  officers  from  a  court 
convened  for  the  trial  of  persons  belonging  to 
the  regular  service. 


It  was  formerly  the  practice,  in  detailing  the  it  is  not 

,  J  _r  sary  to  detail 

members  of  a  general  court-martial,  to  name  one  as  president 

.  7,  .  .  .,        of  the  court 

one  as  the  president  thereof,  who,  necessarily,  martial,  the  se- 

.  ,          ,  «  .  .  nior  presides. 

was  considered  as  occupying  a  position  some-^ 
what  differing  from  that  of  the  body  of  the 
court.  The  laws  which  authorise  the  assem- 
bling of  courts-martial,  making  no  provision  for 
such  special  authority,  and  neither  requiring  nor 
authorising  such  appointment,  the  custom  fell 
into  disuse,  and  is,  at  present,  no  longer  ob- 
served. Independent,  however,  of  the  want  of 
legal  necessity  for  such  a  rule,  there  were  many 
inconveniences  connected  with  it,  which,  in  a 

1  68th  Article  of  War.  s  97th  Article  of  War. 


46  COMPOSITION    OP   COURTS    MARTIAL. 

CHAPTER  service  like  that  of  the  United  States,  where 
-  IIL  bodies  of  troops  are  scattered  over  a  wide  coun- 
try in  small  detachments,  made  it  very  desirable 
to  be  laid  aside.  In  case  of  challenge  to  the 
president,  it  became  necessary  to  refer  to  the 
head  quarters,  by  whose  authority  the  court 
was  constituted,  in  order  that  his  place  might 
be  supplied,  or  a  new  detail  made ;  and  equally 
incapacitated  was  the  court  to  proceed  with  its 
business,  should  the  same  person  be  absent,  at 
the  time  when  the  court  was  directed  to  as- 
semble. These  were  weighty  considerations, 
affecting  the  employment  of  officers,  the  con- 
dition of  the  accused,  and  consequent  expense 
to  the  government,  which  have  introduced  a 
better  and  a  more  simple  rule.  At  present, 
therefore,  when  the  number  to  form  the  court 
is  specifically  expressed,  between  five  and  thir- 
£  com*  ten?1*!  teenJ  the  court  is  fully  competent  to  proceed, 
proceed,  so  long  so  jong  as  ft  does  not  fall  below  the  minimum 

as  it  does  not 

fail  below  the   indicated,  and  the  senior  member  present,  by 

minimum  na-  '       * 

mod  in  the  or-  virtue  of  his  rank,  is  the  president  of  the  court.1 
Any  commis-  There  is  no  limitation  as  to  degree  of  rank 
having  military  necessary  to  be  held  by  officers,  in  order  to 
regard  to  de-  make  them  eligible  to  sit  as  members  of  any 
Eligible  to  sit  description  of  courts-martial.  "  General  courts- 

on  courts  mar-  .    ,  „  .     .          .  ,  .          ,.  , 

tiai.  martial,"  it  is  said,  "  may  consist  of  any  number 

of  commissioned  officers,  from  five  to  thirteen 
inclusively."2  The  rank,  therefore,  of  the  in- 
dividual member  is  considered  only  in  relation 
to  that  of  the  accused,  and  to  the  importance 

1  Such  is  the  practice  of  the  navy,  under  the  35th  and  39th  ar- 
ticles for  its  government. 
»  64th  Article  of  War. 


COMPOSITION    OF    COURTS    MARTIAL. 


47 


of  the  subject  matter  of  investigation,  according     CHAPTER 

to  the  discretion  of  the  appointing  power.1  l— — 

The    proceedings    and    decisions    of  general 


courts-martial  are  subject  to  review  or  revision  view. 
by  the  officer  ordering  the  same,  or  the  officer 
commanding  the  troops  for  the  time  being :  and 
no  sentence  of  a  general  court-martial  in  time 
of  peace,  extending  to  the  loss  of  life,  or  the 
dismission  of  a  commissioned  officer ;  or  which 
shall,  either  in  time  of  peace  or  war,  respect 
a  general  officer,  can  be  carried  into  execution, 
until  after  the  whole  proceedings  shall  have 
been  transmitted  to  the  secretary  of  war,  to  be 
laid  before  the  president  of  the  United  States 
for  his  confirmation  or  disapproval,  and  orders 
in  the  case.  All  other  sentences  may  be  con- 
firmed and  executed  by  the  officer  ordering  the 
court  to  assemble,  or  the  commanding  officer, 
for  the  time  being,  as  the  case  may  be.2 

The  directions  given  for  the  course  of  pro-  Power  to  par- 

j  ,.    .,  j  .  j,       don  or  mitigate 

cedure  are  very  explicit,  to  guard  against  the  punishment,  « 
abuse  of  authority,  or  prejudiced  and  hasty  eSSon. * 
action.  And  in  matters  touching  the  life  or 
commission  of  the  accused,  an  additional  check, 
in  time  of  peace,  is  provided,  in  order  that  the 
whole  subject  may  be  fully  and  dispassionately 
considered.  And  every  officer  authorised  to 
order  a  general  court-martial  shall  have  power 
to  pardon  or  mitigate  any  punishment  ordered 
by  such  court,  except  the  sentence  of  death,  or 
of  cashiering  an  officer;  which,  in  the  cases 
where  he  has  authority  (by  article  65,)  to  carry 

1  75th  Article  of  "War,  and  35th  Article  of  Regulations  for  the 
Navy. 
8  65th  Article  of  War. 


48  COMPOSITION    OF   COURTS    MARTIAL. 

CHAPTER     them  into  execution,  he  may  suspend  until  the 

J^; pleasure  of  the  president  of  the  United  States 

can  be  known ;  which  suspension,  together  with 
copies  of  the  proceedings  of  the  court-martial, 
the  said  officer  shall  immediately  transmit  to 
the  president  for  his  determination.1 

For  the  cognizance  and  punishment  of  mili- 
tary offences  of  minor  degree,  there  are  the 
regimental,  and  the  garrison  courts-martial. 
The  regimental  court-martial  may  be  ordered 
or  appointed  by  the  commander  of  a  regiment 
or  corps,  for  his  own  regiment  or  corps,  to  con- 
sist of  three  commissioned  officers. — And  the 
commander  of  any  of  the  garrisons,  forts,  bar- 
racks, or  other  places,  where  the  troops  consist 
of  different  corps,  may  assemble  courts-martial 
to  consist  of  three  commissioned  officers,  and 
decide  upon  their  sentences.2 

The  term  descriptive  of  these  courts,  evi- 
dently is  applied,  as  the  court  is  assembled  by 
the  order  of  a  commander  of  a  regiment,  or 
corps,  or  by  that  of  the  commander  of  a  garri- 
son. The  proceedings  in  these  courts  are  to 
be  submitted  to  the  officers  ordering  the  same, 
or  to  their  successors  in  command,  for  revision, 
and  decision  on  the  sentences  pronounced.  And 
the  colonel,  or  commanding  officer  of  the  regi- 
ment or  garrison,  where  any  regimental  or  gar- 
rison court-martial  shall  be  held,  may  pardon 
or  mitigate  any  punishment  ordered  by  such 
court  to  be  inflicted.3  The  jurisdiction  of  these 
courts  is  very  limited,  and  can  in  no  case  ex- 
tend to  the  trial  of  capital  cases,  or  commission- 
ed officers.4  Neither  can  they  inflict  a  fine  ex- 

»  89th  Art.  of  War.     2  66th  I&id.      a  QQ&  ibid.     4  67th  Ibid. 


COMPOSITION   OF    COURTS    MARTIAL.  49 

ceeding  one  month's  pay,  or  imprison,  or  put  to     CHAPTER 
hard  labor  any  non-commissioned  officer,  or  sol-        m" 
dier,  for  a  longer  time  than  one  month.1 

It  is  apparent  that  great  convenience  and  ben- 
efit to  the  service  is  consequent  to  the  institution 
of  these  minor  courts.  There  are  frequent  occa- 
sions for  inquiry  into  alleged  misconduct  on  the 
part  of  soldiers,  when  it  would  not  be  possible 
to  assemble  the  number  required  for  a  general 
court-martial ;  and  to  postpone  trial  would 
merely  be  insuring  to  the  delinquent  the  certain 
means  of  escape  from  punishment.  On  detach- 
ed service,  or  marches,  and  the  like,  such  courts 
offer  the  means  of  satisfying  justice,  by  an  in- 
vestigation on  the  spot  where  the  offence  has 
been  committed,  or  the  accusation  made.  On 
marches  particularly,  where  the  men  are  much 
more  given  to  trespass  upon  the  property  of  cit- 
izens, than  when  fixed  in  the  regular  duties  of  a 
permanent  station,  it  is  very  desirable  that  the 
complaint  of  the  citizen  should  at  once  be  ex- 
amined into,  that  justice  may  be  done  to  both 
parties,  without  delay  to  the  injured,  or  hin- 
drance, and  accumulated  expense  to  the  sendee. 

1  In  law,  the  division  of  time  called  a  month,  is  understood  to 
mean  a  lunar  month  of  28  days,  unless  specified  to  the  contrary 
as  a  calendar  month. 

7 


CHAPTER  IV. 

OP  THE  PARTICULAR  JURISDICTION  OP  COURTS  MARTIAL. 

CHAPTER         THE  jurisdiction,  of  the  different  kinds  of 
IV>         courts-martial,  is  determined,  as  well  by  the  par- 
ticular description  of  punishment  denounced,  as 


tifaiCOiTdeter"   ^7  the  person  and  offence  of  the  criminal.    The 
mined-  distinctive  authority  between  general,  and  regi- 

mental or  garrison  courts-martial,  is  expressed 
in  general  terms,  declaring,  that  the  two  latter 
shall  not  have  power  to  try  capital  cases,  or  com- 
missioned officers,  and  also  by  fixing  limits  Jto 
the  degree  of  punishment  which  they  may  order 
or  inflict.1  But  there  are  violations  of  duty, 
which  a  soldier  may  be  guilty  of,  which  do  not 
amount  to  capital  crimes,  and  yet  considering 
the  circumstances  under  which  the  act  is  per- 
petrated, or  the  consequence  flowing  from  it,  de- 
mand a  more  serious  consideration,  or  severer 
chastisement  than  the  constitution  of  a  minor 
court  can  give.  It  is  true,  that  a  knowledge  of 
the  circumstances  attending  the  offence  ought  in 
most  instances  to  determine  the  tribunal  to 
which  the  case  should  be  referred  for  trial.  But 
as  such  may  not  be  known  to  the  appointing 
authority,  or  may  not  be  succinctly  enough  set 
forth  in  the  charges,  such  a  rule  cannot  always 
apply,  and  therefore  it  becomes  necessary  that 
a  more  definite  course  should  be  determined. 

1  67th  Article  of  War. 


JURISDICTION   OF   COURTS    MARTIAL.  51 

An  offence  for  instance,  like  that  specified  in  the     CHAPTER 

45th  article  of  war,  illustrates  what  the  writer ^ 

would  here  present.  Of  so  heinous  or  danger- 
ous a  nature  is  it,  that  a  commissioned  officer 
convicted  of  the  same  is  ipso  facto  cashiered,  and 
yet  the  same  act  in  a  non-commissioned  officer 
or  soldier,  is  left  to  the  discretion  of  the  court 
how  to  punish.  If  then  the  crime  should  be 
submitted  for  investigation  to  a  regimental,  or 
garrison  court  martial,  how  disproportionate, 
when  compared  to  the  penalty  declared  against 
an  officer,  would  the  sanction  be. 

For  such  cases,  and  when  the  power  to  pun- 
ish in  the  court  is  a  discretionary  one,  as  the 
above  quoted  article  of  war  exemplifies,  it  would 
appear  necessary  that  a  general  court-martial  only 
could  have  proper  cognizance  thereof.  In  numer- 
ous cases,  and  they  are  constantly  and  frequent- 
ly happening,  it  is  known  that  this  observance 
of  the  distinctive  jurisdiction  of  the  courts,  is 
not  attended  to  ;  and  it  is  a  matter,  it  is  conceiv- 
ed, deserving  of  serious  reflection.  It  is  not  in- 
tended by  the  above  remarks  to  intimate  that 
the  broad  distinction  of  capital  and  small  of- 
fences, is  not  adhered  to,  or  that  an  inferior 
court  martial  has  entertained  cognizance  of  mat- 
ter, or  persons,  expressly  confided  to  general 
courts-martial — but  it  is  merely  stated  to  call 
attention  to  cases  in  which  at  first  sight,  it  is 
seen  that  they  demand  higher  punishments  than 
the  inferior  courts  can  inflict,  though  under  a 
somewhat  vague  expression  of  the  law,  the  in- 
ferior courts  may  think  themselves  authorised  to 
exercise  jurisdiction  over  them. 

Generally  the  attending  circumstances  of  mil- 


52  JURISDICTION    OP   COURTS    MARTIAL. 

CHAPTER     itary  crime  are  known,  and  the  knowledge  of 

IV>        them   can  be,   if  properly  referred  to,  a  safe 

means  to  indicate  the  character  of  the  tribunal 

before  which  it  should  be  tried. 

General  courts       The  general  description  of  offences,  as  refer- 

martial  can  take 

cognizance  of    able  to  the  authority  of  the  several  courts-mar- 

any  military  of- 
fence, tial,  is  sufficiently  distinct  to  enable  those  bodies 

in  most  cases  to  avoid  interference  by  the  acts 
of  the  one,  with  the  exclusive  rights  of  the 
other.  It  has  been  followed  as  a  custom,  and 
acknowledged  as  a  principle,  that  while  the  in- 
ferior court  cannot,  upon  any  pretence,  proceed 
in  the  investigation  of  any  description  of  offence 
which  has  not  been  explicitly  stated  as  subject 
to  its  authority,  yet  the  superior  court,  can,  by 
virtue  of  its  grade,  necessarily  take  cognizance 
of  all  military  offences  whatever  j1  and  that 
upon  the  plea  that  what  can  be  done  by  a  court 
^  whose  authority  and  functions  are  limited,  can 
of  course  be  done  by  another  court,  whose  pow- 
ers are  not  thus  circumscribed.  There  are  of- 
of  offences  fences,  indicated  in  the  articles  of  war,  express- 

made  triable  by 

regimental        ly  made  the  subject  of  action  for  a  regimental 

courts,  a  gene-  0-1-11  •  i  • 

rai  court  mar-  court ,  and  thence  has  arisen  the  question, 
whether,  as  the  law  has  given  such  court  a 
special  right  in  such  cases,  any  other  court  can 
exercise  authority  over  them. 

Now  the  question  must  be,  it  is  apprehended, 
determined  by  the  character  of  the  statute,  and 
the  object  for  which  the  offences  are  declared 
punishable.  The  statute  being  penal,  is  neces- 
sarily to  be  construed  strictly,  so  far  as  the  degree 
of  punishment  may  affect  the  offender ;  but  the 

»  Adye  on  Courts  Martial,  p.  96. 
*  37th  and  47th  Articles  of  War. 


JURISDICTION    OP    COURTS    MARTIAL.  53 

purposes  for  which  punishment  is  at  all  inflicted     CHAPTER 

being  determined  by  the  necessity  of  discipline, *— 

and  welfare  of  the  service,  it  can  matter  but  lit- 
tle whether  that  punishment  in  its  legal  amount 
be  decreed  by  one  court  or  another.  In  this 
then  it  is  perceived,  that  should  a  general  court- 
martial  claim  cognizance  of  such  offences,  the 
power  of  such  courts  to  punish  is  not  to  be  ex- 
erted beyond  what  a  regimental  court  might  in 
the  same  case  exert — or  in  other  words,  that  a 
general  court-martial  can  in  such  cases,  inflict 
no  greater  punishment,  than  what  the  inferior 
court  could  legally  pronounce.1  With  this  limit- 
ation of  authority,  it  is  supposed  that  the  inter- 
vention of  a  general  court  martial  would  be 
valid.  The  purpose  of  the  legislature,  being 
seen  to  be,  security  for  the  offender  against  the 
higher  degrees  of  military  punishment,  by  con- 
fiding his  crime  to  the  cognizance  of  an  inferior 
court,  would  be  fully  observed  and  respected  by 
the  principle  of  action  indicated — and  in  many 
cases,  would  be  the  only  means  of  vindicating 
good  order  by  a  speedy  or  certain  trial.  Thus, 
without  any  offence  to  the  principles  of  justice, 
or  to  the  rights  and  safety  of  persons,  as  neither 
the  forms  of  procedure  or  the  penalties  could  be 
changed,  would  a  principle  be  carried  out,  which 
has  been  expressed  by  saying,  that  "  the  wisdom 
of  the  law  abhors  that  offences  should  go  un- 
punished." 

i  This  is  in  accordance  with  the  principle  which  governs  the 
action  of  regimental  courts  in  the  British  army,  where  in  certain 
cases  their  jurisdiction  is  extended  to  higher  crimes  than  usual  to 
them,  but  limited  as  to  punishment  by  their  own  competency  to 
award  sentence  in  ordinary  cases. 


54 


JURISDICTION   OF   COURTS    MARTIAL. 


CHAPTER 
v> 


2uwSt?cpun 


stated  by  the 

law. 


The  articles  of  war  have  for  many  kinds  of 
offences  designated  specific  punishments.  In 
such  cases  there  is  no  discretion  left  with  the 
court  in  awarding  sentence,  but  there  may  be 
occasion  to  take  notice  of  favorable  circum- 
stances which  have  been  shown  in  the  course 
of  trial,  and  which,  as  palliative  of  the  crime,  may 
induce  a  recommendation  to  mercy.  This  part 
of  the  subject  will  be  further  considered  in  a 
succeeding  chapter. 

Capital  punish-  General  courts-martial,  as  has  been  previously 
stated,  are  clothed  with  the  highest  powers  per- 
taining to  a  military  judicial  body,  and  may 
award  in  some  cases,  the  ultimum  supplicium, 
of  death,  and  in  others  the  lightest  infliction,  of 
fine  or  imprisonment.  It  must  be  observed  how- 
ever, that  capital  punishment  cannot  be  inflicted 
by  the  sentence  of  a  court-martial,  except  in 
such  cases,  as  have  been,  for  specified  crimes, 
made  expressly  obnoxious  to  such  judgment. 
The  degrees  of  punishment  are  various,  ranging 
from  the  highest  that  human  authority  has  deem- 
ed necessary  for  the  security  of  social  intercourse, 
to  the  lowest  that  the  particular  interest  of  a  small 
community  may  require  for  the  maintenance  of 
good  order.  These  degrees  are  not,  as  they 
could  not  be,  determined  for  every  case,  but  are 
necessarily  left  for  the  discretion  of  the  courts, 
to  apply  according  to  the  attendant  circum- 
NO  deserter  can  stances.  The  punishment  of  death,  which  is  de- 
punSfed  m  nounced  against  the  crime  of  desertion,  is  by  the 
act  of  congress,  of  May  29,  1830,  expressly  re- 
stricted, by  declaring  that  "  no  officer  or  soldier 
in  the  army  of  the  United  States  shall  be  sub- 
ject" to  the  same,  "  for  desertion  in  time  of 


JURISDICTION    OP    COURTS    MARTIAL.  55 


peace."  This  is  a  wise  provision  of  law,  which  CHAPTER 
interprets  this  particular  offence  according  to  the  IV> 
evil  consequences  which  may  flow  from  it  under 
different  conditions  of  service :  and  although 
courts-martial  might  not  in  time  of  peace,  be 
likely  to  declare  such  a  penalty,  or  if  such  were 
declared,  the  executive  would  not  permit  it  to 
be  carried  into  execution,  yet  this  law  humanely 
interposes  to  prevent  the  possibility  of  sanguin- 
ary punishment,  and  more  effectually  vindicates 
the  rights  of  the  army,  by  enforcing  the  sanc- 
tions declared  by  its  courts.  General  courts- 
martial  are  also  authorized  to  inflict  punishment 
by  stripes,  but  this  is  limited  to  the  single  offence 
of  desertion,  and  cannot  in  amount,  exceed  fiftv  of  punishment 

"by  stripes. 

lashes. 

In  all  other  cases,  courts-martial  are  denied 
the  power  to  inflict  such  penalty ;  and  a  resort 
to  such  a  means  for  the  enforcement  of  disci- 
pline, is  on  the  part  of  every  officer,  most  strictly 
forbidden. 

In  cases  where  a  general  court-martial  may  suspension 

.....  •      •  i      /r>     from  command 

think  it  proper  to  sentence  a  commissioned  pin-  and  pay. 
cer  to  be  suspended  from  command,  it  is  also 
authorized  to  suspend,  or  order  a  forfeiture  of  his 
pay  and  emoluments  for  the  same  time.1  By 
reference  to  the  language  of  the  article  of  war 
which  concedes  the  right  alluded  to,  it  will  be 
seen  that  there  are  limitations  and  conditions 
upon  which  the  power  rests.  The  right  then 
depends,  first  upon  the  act  of  the  court  which 

1  84th  Article  of  War.  By  the  30th  Article  of  the  act  for  the 
government  of  the  navy,  a  commanding  officer  may  of  his  own 
will  suspend  a  commissioned  officer.  (Naval  Laws,  p.  63.)  This 
operates  only,  however,  as  a  withdrawal  of  the  suspended  officer 
froin  duty. 


56  JURISDICTION    OP   COURTS    MARTIAL. 

CHAPTER     may  think  it  necessary  to  suspend  an  officer 

IV- from  '  command,  and  secondly,  it  is  limited  in 

amount  by  the  time  for  which  such  suspension 
shall  continue.  An  officer  placed  under  suspen- 
sion of  command,  is  for  the  time,  so  far  as  the 
functions  of  his  office  are  concerned,  virtually 
dead  to  the  service,  although  his  distinctive 
character  as  a  soldier,  by  which  he  is  held 
amenable  to  military  law,  and  through  which 
by  the  proper  authority  he  may  be  restored  to 
active  duties,  is  not  lost.  Placed  then  in  such 
condition,  where  the  service  to  which  he  belongs 
makes  no  call  upon  his  time,  or  requirements  for 
his  labor  and  assistance,  it  is  neither  so  neces- 
sary to  him  to  receive  nor  incumbent  upon  the 
government  to  allow,  the  regulated  amount  of 
compensation.  But  the  principle  and  purposes 
of  pay  to  a  considerable  extent,  are  seen  in  a 
very  different  light,  should  the  officer  be  required 
to  serve  in  his  military  capacity,  when  at  the 
same  time  a  forfeiture  of  his  pay  and  emolu- 
ments have  been  declared  suspended  for  a  given 
period.  The  intention  then  of  the  government 
itself  is  thwarted,  and  the  individual  put  in  a  sit- 
uation in  which  by  the  pecuniary  necessities  im- 
posed upon  him,  he  is  in  danger  of  being  de- 
graded in  the  estimation  of  the  public.  In  the 
determination  of  such  mode  of  punishment, 
courts-martial  in  the  cases  of  commissioned 
officers,  should  take  a  liberal  view  of  the  subject 
before  pronouncing  judgment,  and  refer  not  only 
to  the  merits  or  demerits  of  the  individual  to  be 
affected  by  their  decision,  but  to  his  appropriate 
place  in  society  as  a  gentleman,  and  the  possible 
influence  which  his  acts,  habits  and  associations, 


JURISDICTION    OP   COURTS   MARTIAL.  57 

which  are  all  more  or  less  dependent  upon  his  CHAPTER 
means  of  support,  may  exercise,  through  public  1V' 
opinion,  upon  the  military  service.  It  is  very 
evident,  that  the  intention  of  the  law,  which 
commits  such  discretionary  power  to  a  general 
court-martial,  was  not  so  much  to  punish  the  in- 
dividual, as -to  guard  the  interests  of  the  public ; 
and  in  no  particular  connected  with  the  army, 
has  the  public  a  greater  and  more  noble  interest, 
than  there  is  to  be  derived  from  the  becoming 
deportment,  and  high  moral  attributes  of  its 
members.  Economical  expenditure  of  money, 
however  important  or  commendable  as  a  rule, 
must  be  a  secondary  consideration  when  com- 
pared with  efficient  service,  or  trust- worthiness 
of  character  of  public  agents — and  a  too  indis- 
criminate application  of  the  authority  given  by 
the  law,  might  in  many  instances  defeat  the 
good  ends,  and  for  the  attainment  of  which  it 
had  originally  been  enacted. 

If  the  power  given  in  the  article  of  war  is 
considered  merely  as  a  means  of  punishment, 
and  therefore  to  be  resorted  to  by  a  court-mar- 
tial, it  is  certain  that  it  is  deficient  in  a  very  es- 
sential feature  of  distributive  justice — to  wit : — 
equality  and  uniformity  of  operation  when  ap- 
plied to  different  persons.  What  in  one  case 
would  be  a  severe  deprivation,  and  source  of 
anxiety  and  pain,  would  in  another  be  regarded 
with  total  indifference  ;  and  this  from  the  mere 
accidental  circumstances  of  the  parties,  and 
where  too,  the  offence  or  guilt  of  the  latter 
might  be  far  greater,  than  that  of  the  first.  It 
in  fact  then  would  be  a  mere  accumulative 
weight  of  punishment,  superadded  to  that  of 

8 


58 


JURISDICTION    OF   COURTS   MARTIAL. 


CHAPTER 
IV. 


Reduction  to 
the  ranks  of 
non-commis- 
•ioned  officers. 


Fine  and  im- 
prisonment. 


"  suspension  of  command,"  which  would  weigh 
down  some  with  humiliating  rigor,  while  others, 
more  culpable,  would  treat  it  with  contemptuous 
scorn,  and  be  altogether  unconscious  of  any 
burthen ! 

Courts-martial,  general,  regimental,  and  gar- 
rison, have,  from  the  custom  of  service,  and  not 
from  any  express  authority  given  by  the  articles 
of  war,  except  for  two  offences,1  exercised  the 
right  to  reduce  non-commissioned  officers  to  the 
ranks.  This  right  is  fully  confirmed  or  acknowl- 
edged by  the  general  regulations  for  the  army  ; 
and  it  seems  to  be  a  necessary  course  to  pursue 
in  many  cases,  inasmuch  as  non-commissioned 
officers  cannot  be  imprisoned  or  suffer  corporal 
punishment,  before  being  reduced  to  the  ranks. 

Fine  and  imprisonment  is  another  mode  of 
punishment  resorted  to  by  courts-martial,  to 
which  also  is  added  hard  labor.  The  authority 
for  such  sentences  is  directly  vested  in  garrison 
and  regimental  courts-martial  by  the  67th  article 
of  war;  and  by  implication,  as  the  extent  of 
punishment  is  limited  in  these  courts,  by  that 
article,  and  having  a  necessary  reference  to  the 
jurisdiction  and  authority  of  general  courts-mar- 
tial, the  same  power  belongs  also  to  courts  of 
the  latter  description.  As,  however,  the  pun- 
ishment by  this  means  is  expressly  stated  and 
allowed  to  the  inferior  courts,  and  acknowledged 
thereby  as  a  becoming  military  punishment,  the 
superior  court  might  exercise  the  same  means, 
as  it  has  a  wide  field  of  discretion  in  the  selec- 
tion of  punishment  (controlled  however  by  the 
custom  of  service,)  upon  the  principle  which  is 

1  39th  and  48th  Articles  of  "War. 


JURISDICTION   OF   COURTS   MARTIAL.  59 

• 

observed    by   courts   of    civil    judicature,   that     CHAPTER 
"  where  an  offence  exists,  to  which  no  specific        Iv- 
punishment  is  affixed  by  statute,  fine  and  im- 
prisonment is  the  punishment."1 

From  the  vague  language  of  some  of  the  ar-  Distinctive  j» 
tides  of  war,  officers  have  found  themselves  per- 
plexed  and  embarrassed  at  times,  in  matters  re- 
lating to  the  distinctive  jurisdiction  of  courts- 
martial.  It  is  believed  too,  that  proceedings 
have  had  place  under  indefinite,  or  confused 
views  of  the  authority  exercised,  and  to  some 
extent  determined  precedents  which  cannot  find 
support  in  any  stable  basis  of  law.  Now  the 
38th  article  of  war  presents  an  illustration  of  the 
foregoing  remarks.  The  language  of  it  is  suf- 
ficiently uncertain  to  give  rise  to  various  and 
conflicting  opinions,  as  to  what  description  of 
court-martial  is  there  referred  to,  and  as  a  con- 
sequence thereof,  some  regimental  courts  have 
taken  cognizance  of  offences  under  it,  and  limit- 
ed the  part  of  the  sentence  which  decreed  stop- 
pages of  pay,  to  the  amount  indicated,  per  week, 
while  others  have  decidedly  rejected  all  jurisdic- 
tion over  the  like  matter.  In  support  of  the  pro- 
ceedings of  the  first  it  is  said  that  the  restriction 
relative  to  an  offender's  pay,  mentioned  in  the 
67th  article  of  war,  was  not  intended  to  apply 
to  cases  like  those  mentioned  in  the  38th,  and  in 
all  cases,  was  provided  merely  as  a  punishment, 
or  personal  privation,  and  not  to  cover  or  make 
up  losses  and  damages  of  public  property  com- 
mitted to  the  care,  and  for  the  use  of  the  soldier ; 
that  therefore  so  long  as  a  regimental  or  garrison 
court-martial,  should  observe  the  limitation  of 

1 1  Kent's  Com.,  317. 

•    • 


JURISDICTION   OP   COURTS    MARTIAL. 

CHAPTER     the  weekly  stoppage,  it  did  not  affect  the  com- 
Iv'        petency  of  the  court  to  act,  whether  the  sum  to- 
tal was  above  or  below  the  value  of  a  month's 
pay  ;  or  whether  the  time  required  to  realize  the 
amount  was  of  a  longer  or  shorter  period. 
The  inferior         But  it  is  thought  that  the  grounds  assumed  in 

courts-martial 

cannot  impose  a  such  reasoning  for  the  support  of  jurisdiction  in 

fine    exceeding  J  A 

one  month's  the  inferior  courts,  are  hardly  sufficient  to  war- 
rant the  cognizance  by  them  of  such  offences. 
The  express  declarations  of  the  law,  cannot  be 
put  aside  in  order  to  make  way  for  an  interpre- 
tation which  is  repugnant  to  them.  By  the  67th 
article  of  war  it  is  explicitly  stated  that  no  regi- 
mental or  garrison  court-martial  shall  inflict  a 
fine  exceeding  one  month's  pay.  Nothing  surely 
could  be  clearer  or  more  positive,  and  it  is  equal- 
ly certain  that  the  offences  indicated  in  the  38th 
article  of  war,  will,  when  perpetrated,  most 
probably  produce  a  loss,  more  than  equivalent  in 
value  to  one  month's  pay.  The  offence  then, 
considering  the  importance  of  the  articles  enu- 
merated, as  equipments  for  military  service,  and 
without  which,  the  soldier  would  rather  be  an 
incumbrance,  is  too  grave  in  its  character  to  be 
submitted  to  the  limited  authority  of  the  inferior 
court,  for  investigation  and  punishment.  The 
only  means  to  resort  to  for  the  repairing  of  such 
loss  or  damage  is  the  offender's  pay ;  but  such 
may  be  very  inadequate  for  such  a  purpose,  and 
can  in  many  cases  be  but  a  nominal  reparation 
of  the  injury,  on  account  of  the  limited  time  for 
which  soldiers  are  engaged  to  serve — it  there- 
fore would  seem  necessary  to  remit  such  cases 
for  the  action  of  a  general  court-martial,  in  order 
that  a  degree  of  punishment  may  be  inflicted, 


JURISDICTION   OP   COURTS   MARTIAL.  61 

which  shall  at  least,  have  the  tendency  to  deter     CHAPTER 
others  from  like  acts,  by  the  force  of  example.        IV> 


This  offence  when  noticed  must  be  viewed  in  °ef  j^f 

reference  to  the  article  of  war  as  a  specific  of- 

fence,  and  cannot,  in  order  to  remove  it,  by  an  courts-martii»i. 

ambiguous  method  of  specifying  the  crime,  for 

the  action  of  a  regimental  or  garrison  court-mar- 

tial, be  classed  with  numerous  other  offences,  un- 

der the  denomination  of  disorders  and  neglects,  to 

the  prejudice  of  good  order  and  military  dis- 

cipline. 

The  authority  given  to  regimental  and  garri-  Authority  of 
son  courts-martial  to  take  cognizance  of  military 
offences,  is  distinctly  limited  by  the  67th  article 

/.  -•  •••  .  /•  i     i  articles  of  war. 

of  war;  and  a  special  power  is  confided  to  a 
regimental  court  by  the  35th  article  to  investi- 
gate complaints  of  soldiers  against  their  cap- 
tains, or  other  officers  commanding  the  company 
to  which  the  complainant  belongs.  Thus  the 
distinctive  character  of  offences  is  made  plain 
enough  in  ordinary  cases,  to  obviate  objections 
on  the  score  of  legal  jurisdiction,  and  courts- 
martial  jnay,  without  embarrassment  or  danger, 
determine  their  competency  to  act,  upon  any 
military  crime  which  may  be  made  the  subject 
of  trial. 

From  the  preceding  references  to  the  articles 
of  war,  and  by  the  remarks  made  in  connection 
therewith,  it  is  seen  that  all  military  offences,  as 
to  the  manner,  and  by  what  description  of  court- 
martial  they  are  to  be  recognized,  may  be  classed 
as  follows  :  —  Of  crimes  cognizable  by  a  general 
court-martial.  c^  or  of. 

First.  Those  which  are  expressly  committed 
to  the  jurisdiction  of  a  general  court-martial. 


court- 


JURISDICTION    OF   COURTS    MARTIAL. 


CHAPTER 
IV. 


Crimes  or  of- 
fences cogniza- 
ble by  a   regi- 
mental or  gar- 
rison court- 
martial. 


Crimes,  within 
the  exclusive 
jurisdiction  of 
general  courts- 
martial. 


Second.  Those  against  which  particular  pen- 
alties are  denounced,  exceeding  the  authority 
which  regimental  or  garrison  courts-martial  hstve 
to  inflict. 

Third.  Those  which,  from  the  nature  and 
circumstances  of  the  offence,  seem  to  demand  a 
severe  punishment,  beyond  the  authority  of  a 
minor  court  to  order. 

Fourth.  Those  which  offend  against  the  prin- 
ciples of  good  order  and  military  discipline, 
though  subject  to  be 'tried  before  a  regimental  or 
garrison  court-martial,  may  require,  for  speedy 
punishment  and  convenience  to  the  service,  to 
be  investigated  by  a  general  court-martial. 

The  crimes  cognizable  by  a  regimental  or  gar- 
rison court-martial,  comprise  all  those  which  in- 
fract the  ordinary  proprieties  of  military  ser- 
vice, as  irregularities  and  disorders  which  are 
not  of  a  grave  and  serious  description ;  besides 
such  specific  offences  as  are  named  in  the  arti- 
cles of  war,  subject  to  their  authority.  Hence, 
as  a  general  rule,  it  appears  that  courts-martial 
have  a  jurisdiction  in  military  matters,  deter- 
mined by  persons,  offences,  and  punishment  de- 
nounced ;  and  their  authority  is  necessarily  lim- 
ited by  the  just  observance  of  such  character- 
istics. 

As  a  means  of  easy  reference,-  and  in  order  to 
make  more  intelligible  the  distinctions  dwelt 
upon,  the  following  offences  are  those  declared 
by  law  cognizable  by  a  general  court-martial, 
and  cannot  therefore  be  tried  by  any  other  de- 
scription of  court-martial : 

Art.  7.  Beginning,  exciting,  causing,  or  joining 
in  any  mutiny. 


JURISDICTION    OF    COURTS   MARTIAL.  63 

8.  Knowing  of,  and  not  giving  information  of,     CHAPTER 
intended  mutiny,  or  not  endeavoring  to  suppress        IY> 
the  same. 

9.  Striking,   or  drawing    or    lifting    up   any 
weapon,  or  offering  violence  to  a  superior  officer 
in  the  execution  of  his  duty. 

21.  Deserting  the  service. 

22.  Enlisting  in  any  other  regiment,  troop  or 
company  before  being  regularly  discharged. 

23.  Persuading  to  desert. 

27.  Disobedience  of  an  order,-  or  drawing 
sword  upon  an  inferior  officer,  in  case  of  quar- 
rels, frays,  &c. 

38.  Selling,  losing,  or  spoiling,  through  neglect, 
horse,  arms,  accoutrements. 

46.  Sentinel  sleeping  upon  post. 

51.  Offering  violence  to  persons  bringing  pro- 
visions or  necessaries  to  camp,  out  of  the  United 
States. 

52.  Misbehaving  before  the  enemy,  abandon- 
ing post,  throwing  away  arms,  quitting  colors  to 
plunder  and  pillage. 

53.  Making  known  the  watch-word  to  any 
not  entitled  to  receive  it,  or  giving  a  different  pa- 
role or  watch-word  from  that  received. 

55.  Forcing  a  safe-guard  in  foreign  parts. 

56.  Relieving  the  enemy,  or  harboring  and 
protecting  an  enemy. 

57.  Holding  correspondence  with,  or  giving  in- 
telligence to,  the  enemy. 

59.  Compelling  a  commander  to  surrender. 

Sec.  2.  Persons  not  citizens  of,  or  owing  alle- 
giance to  the  United  States  in  time  of  war,  who 
are  found  lurking  as  spies  in  or  about  fortifica- 
tions or  encampments  of  the  United  States. 


64  JURISDICTION    OF   COURTS    MARTIAL. 

CHAPTER         And,  in  all  other  cases  whatever,  in  which  an 
IY'        officer  is  to  be  tried. 

All  such  cases,  as  have  been  referred  to,  com- 
ing under  the  38th  and  45th  articles  of  war,  and 
any  other  of  similar  description,  should,  not  only 
for  uniformity  of  rule,  but  for  the  purposes  of 
substantial  justice,  be  made  the  subject  of  trial 
by  a  general  court-martial.  To  the  author,  such 
appears  to  be  the  intention  of  the  legislature,  for 
the  reasons  given  in  another  page,  and  he  would 
now  recommend  a  like  consideration  of  it  to  the 
commanders  who  possess  the  authority  to  ap- 
point courts-martial,  and  to  the  members  of  such 
courts  themselves. 

General  courts-  There  is  another  observation  .to  be  made  in 
titular  cMJsT  this  place,  which  is  important  to  the  proceed- 
Jreater  punish-  ings  of  courts-martial.  From  the  principle,  pre- 
Inferior  courts  viously  adverted  to,  and  which  has  been  sanc- 
tioned by  the  custom  of  the  army,  and  conceded 
by  the  service,  that  general  courts-martial  may 
claim  and  exercise  jurisdiction  over  every  spe- 
cies of  offence  designated  by  the  articles  of  war, 
it  becomes  necessary  that  such  courts  should 
discriminate  between  crimes  confined  exclu- 
sively to  their  cognizance,  and  such  others  as 
might  be  tried  by  an  inferior  court,  so  far  as 
their  own  discretion  to  award  punishment  may 
be  affected.  Now  in  those  cases  arising  under 
the  provisions  of  the  37th  and  47th  articles,  and 
by  which  a  jurisdiction  is  saved  to  the  regi- 
mental court,  it  would  appear  as  a  just  interpre- 
tation of  the  law,  that  punishment  for  such  was 
intended  to  be  limited  according  to  the  compe- 
tency of  a  regimental  court-martial  to  award  it, 
and,  therefore,  a  general  court-martial,  when 


JURISDICTION    OF    COURTS    MARTIAL.  65 

considering  such  cases,  should  not  vary  in  kind,  CHAPTER 
or  exceed  in  degree,  the  punishment  which  the  IY- 
inferior  court  could  decree.  This  rule  is  not 
only  just  in  the  abstract,  but  considering  the 
trial  as  a  criminal  proceeding,  for  the  infliction 
of  punishment,  it  is  of  legal  obligation  to  be 
followed.  And,  as  a  general  remark,  it  may 
be  said,  that  in  whatever  case  a  general  court- 
martial  takes  cognizance  of  matter  which  a  regi- 
mental or  garrison  court-martial  is  competent 
to  try,  no  severer  punishment  should  be  inflicted 
than  what  such  courts  might  have  also  sanc- 
tioned. Of  course,  the  particular  evidence  ad- 
duced before  general  courts-martial  in  such 
cases,  will  enable  the  members  to  judge  con- 
clusively whether  it  would  have  been  a  fitting 
subject  for  an  inferior  court  to  try,  and  the  sen- 
tence will  be  accordingly  determined.  Now, 
considerations  of  this  kind  in  the  apportionment 
of  punishments,  to  be  borne  by  military  offen- 
ders, will  have  a  two-fold  good  effect : — first,  it 
will  satisfy  the  soldiery  who  are  obnoxious  to 
trial,  that  it  will  not,  on  account  of  the  greater 
dignity  or  wider  scope  of  authority  of  the  court, 
cause  a  proportionate  increase  of  punishment, 
and,  therefore,  appear  to  be  regulated  by  no 
consistent  or  rational  principle,  when  compared 
with  the  amount  which,  for  the  same  offence,  a 
regimental  court-martial  could  inflict : — and  sec- 
ondly, it  will  tend  to  harmonize  the  judgments 
of  the  different  courts,  establish  uniformity  or 
precision  in  their  sentences,  and  make  less  prob- 
able, arbitrary  and  capricious  decisions.  The 
species,  at  least,  of  the  punishments  to  be  in- 
flicted will,  by  such  a  course,  become  more  de- 


66  JURISDICTION   OP   COURTS    MARTIAL. 

CHAPTER  terminate,  and  the  quantity  or  degree,  not  vary- 
1V-  ing  so  widely  as  under  the  usual  custom,  will 
become  more  equitable.  It  has  been  objected 
to  trials  by  court-martial,  and  with  some  ap- 
pearance of  reason,  that  there  is  too  great  vari- 
ance between  the  judgments  pronounced  against 
the  same  offences.  To  those  persons  who  have 
considered  the  subject,  it  must  have  appeared, 
from  the  necessity  under  which  all  military 
courts  labor  in  the  manner  in  which  they  are 
constituted,  sometimes  composed  of  experienced 
and  able  members,  and  again  of  a  different  de- 
scription of  persons,  besides  the  particular  cir- 
cumstances which  are  presented,  and  by  which 
the  discretion  of  the  court  is  regulated,  that  such 
must  be  a  result,  though  it  is  believed,  that, 
greatly  as  decisions  vary,  in  instances  which  to 
the  world  might  appear  identical,  there  is  not  so 
great  a  departure  from  "equal  justice"  as  is  sup- 
posed. It  is,  however,  an  undoubted  fact,  that 
there  have  been  instances  in  which  the  discre- 
tion to  punish  has  "  o'erleapt  itself  and  fallen  on 
the  other  side,"  and,  therefore,  the  above  re- 
marks are  suggested  to  prevent,  by  inducing  a 
uniform  principle  of  action,  such  excess.  Regu- 
larity and  uniformity  of  procedure  are  of  vital 
importance  for  the  direction  of  all  courts  of  jus- 
tice. Equality  in  punishment  renders  punish- 
ment for  offences  more  certain,  as  it  satisfies  the 
natural  love  of  justice  inherent  in  the  human 
mind.  To  attain  such  result,  it  is  an  essen- 
tial, as  it  is  "one  of  the  glories  of  the  law," 
that  the  species,  though  not  always  the  quantity 
of  punishment  is  ascertained  for  every  of- 
fence:— and,  as  has  been  said  by  Sir  William 


JURISDICTION   OF   COURTS    MARTIAL.  67 

Blackstone,1 — "  it  is  not  left  in  the  breast  of  any  CHAPTER 
judge,  nor  even  of  a  jury,  to  alter  that  judgment  Iv' 
which  the  law  has  beforehand  ordained,  for 
every  subject  alike,  without  respect  of  persons. 
For  if  judgments  were  to  be  the  private  opinions 
of  the  judge,  men  would  then  be  slaves  to  their 
magistrates ;  and  would  live  in  society,  without 
knowing  exactly  the  conditions  and  obligations 
which  it  lays  them  under.  And  besides,  as  this 
prevents  oppression  on  the  one  hand,  so,  on  the 
other,  it  stifles  all  hopes  of  impunity  or  mitiga- 
tion, with  which  an  offender  might  flatter  him- 
self, if  his  punishment  depended  on  the  humour 
or  discretion  of  the  court.  Whereas,  where  an 
established  penalty  is  annexed  to  crimes,  the 
criminal  may  read  their  certain  consequence  in 
that  law ;  which  ought  to  be  the  unvaried  rule, 
as  it  is  the  inflexible  judge,  of  his  actions." 

1 IV.  Book,  376. 


CHAPTER  V. 


OF  PUNISHMENTS. 


CHAPTER 
V. 

Punishment 
regulated  in 
kind  and  de- 
gree by  the 
constitution. 


Cruel  and  unu- 
sual punish- 
ments. 


PUNISHMENTS  of  every  description,  which 
may  be  inflicted  by  sentence  of  either  civil  or 
military  court,  are  regulated  in  kind  and  degree, 
by  the  restraining  provision  of  the  eighth  article 
of  the  amendments  to  the  constitution,  which 
declares,  that  "  excessive  fines  shall  not  be  im- 
posed, nor  cruel  and  unusual  punishments  in- 
flicted." Cruel  punishments  may  be  defined  as 
those  which  are  vindictive  in  their  character 
and  intended  solely  to  cause  suffering,  without 
considering  the  just  relations  between  the  act 
which  offends,  and  the  true  purposes  for  which 
punishment  is  inflicted.  Or  they  are  such  as 
violate  the  dictates,  or  sentiments  of  natural 
mercy,  without  regarding  the  ends  of  punish- 
ment, as  a  means  only,  to  ensure  the  safety  of 
the  community.  Unusual  punishments  are,  such 
as  the  term  implies — unknown  to  the  statutes 
of  the  land,  or  unsanctioned  by  the  customs  of 
the  courts.  Such  are  the  kind  forbidden  by  the 
fundamental  law  of  the  country,  and  such  would, 
if  indulged,  be  necessarily,  arbitrary  and  capri- 
cious. There  is  of  necessity,  a  wide  scope  left 
for  the  exercise  of  opinion  or  discretion  to  mil- 
itary courts,  in  the  apportionment  of  punishment 
to  many  offences,  and  this  arises  from  the  great 
variety  of  circumstances,  which  are  an  aggrava- 


OP  PUNISHMENTS.  69 

tion  or  otherwise  of  the  crime.  This  may  also  CHAPTER 
appear  as  an  exception  to  the  principle  hereto-  v' 
fore  stated  ;l  but  though  the  exact  amount  is  not 
determined,  yet  the  kind  of  punishment  is  indi- 
cated, and  by  that  must  the  courts  be  governed. 
So  would  a  sentence,  which  should  impose  a 
punishment,  excessive  in  degree,  although  of  an 
authorized  kind,  be  considered  as  cruel,  because 
it  would  be  a  departure  from  justice,  and  violate 
those  rights,  personal,  and  social,  which  it  is  the 
business  and  duty  of  courts  to  defend  and  pro- 
tect. 

The  principle  then  for  the  guidance  of  a  court-  Principle  by 

I  j.  J.  o  ^  which  pumsh- 

martial,  in  determining  the  kind  and  quantum,  mem  is 
of  punishment  for  any  offence,  seems  to  be  very 
clearly  pointed  out.  The  express  declaration  of 
the  law,  which  for  some  crimes  specifies  the 
penalty,  and  in  other  cases  the  discretion  of  the 
court,  governed  or  directed  by  the  customs  of 
war,  and  a  just  humanity,  are  a  sufficient  safe- 
guard for  the  conduct  of  military  courts  in  this 
particular ;  and  it  is  a  part  of  their  duties  which 
demands  their  deliberation.  The  violation  of 
these  rules,  would  undoubtedly  subject  the 
members  of  a  court-martial  to  a  civil  action  on 
the  part  of  the  person  whose  rights  had  been  in- 
fringed by  their  judgment,  and  would  moreover 
have  a  tendency  to  render  unstable  the  govern- 
ment which  such  bodies  exercise  over  the  mili- 
tary community.  To  every  officer  therefore, 
who  is  liable  to  be  placed  as  a  member  of  a 
court  martial,  to  vindicate  the  rights  of  the  ser- 
vice by  a  judicial  award  of  punishment,  it  must 
appear  a  matter  of  important  bearing  upon  the 

1  Chap.  IV.  p.  66. 


70  OP     PUNISHMENTS. 

CHAPTER  community  to  which  he  belongs,  how  he  shall 
Yt  exercise  that  judgment  which  in  a  judicial  capa 
city  he  is  called  upon  to  exert.  It  is  not  only  to  be 
regarded  as  to  the  effect  upon  the  offender,  who 
may  be  obliged  to  suffer  a  greater  or  less  degree 
of  corporeal  pain,  and  thus  satisfy  the  law,  but 
a  careful  consideration  of  his  legal  powers,  and 
the  proper  application  of  them  to  the  particular 
case  before  him,  in  order  that  no  wrong  be  com- 
mitted, is  also  required.  This  power  of  discrim- 
ination, by  which  the  members  of  courts-martial 
are  enabled  to  distinguish  the  path  before  them, 
is  not  intuitively  derived.  A  habit  of  reflection, 
and  study  of  the  laws  by  which  they  are  gov- 
erned, can  alone  place  it  within  their  reach,  and 
thus  save  them  from  the  expression  of  inconsis- 
tent opinions,  or  the  commission  of  illegal  acts, 
which  react  upon  the  individual,  and  the  profes- 
sion, by  the  significant  means,  either  of  ridicule 
or  of  retaliation. 


CHAPTER  VI. 

PRELIMINARIES  TO  TRIAL. 

UNIFORMITY  of  procedure  against  officers  and     CHAPTER 
soldiers,  for  crimes  committed  by  either,  is  so        YI- 
essential  to  the  harmony  of  the  service,  and  the 


personal  liberty  of  all  subjected  to  the  rule  of  Proced 
military  law,  that  great  attention  should  be  given 
to  the  forms  which  the  law  and  the  regulations 
have  prescribed.  To  leave  such  matters  to  be 
regulated  or  determined  by  the  will  of  individu- 
als, would  necessarily,  in  many  cases,  be  pro- 
ductive of  violent  and  unbecoming  behavior, 
prejudicial  alike  to  the  station  or  authority  of 
the  officer  commanding,  and  to  the  interests  of 
the  military  service,  for  the  preservation  of  which 
such  will  had  been  exerted. 

To  obviate  these  difficulties  the  law  has  wise-  Manner  of  im- 
ly  directed  the  manner  in  which  an  offender  is  ^^f militarr 
to  be  proceeded  against,  and  declares  that "  when- 
ever any  officer  shall  be  charged  with  a  crime, 
he  shall  be  arrested  and  confined  in  his  barracks, 
quarters,  or  tent,  and  deprived  of  his  sword  by 
the  commanding  officer  j"1  and  that  "  non-com- 
missioned  officers  and  soldiers,   charged  with 
crimes,  shall  be  confined  until  tried  by  a  court- 
martial,  or  released  by  proper  authority."2  Confinement 

.  ,  J  not  to  exceed 

To  guard  against  abuses,  which  might  follow  eisht  day>  °r 

°.  . '  until  a  court 

from  the  imposition  of  arbitrary  arrest  and  con-  m**^  can  bo 

assembled, 
i  77th  Article  of  War.  *  78th  Article  of  War. 


72  PRELIMINARIES   TO   TRIAL. 

CHAPTER     finement,  it  is  provided,  that  "  no  officer  or  sol- 

VI>         dier  who  shall  be  put  in  arrest,  shall  continue  in 

confinement  more  than  eight  days,  or  until  such 

officer  of  thj     time  as  a  court-martial  can  be  assembled."1     It 

guard  or  provost  .  ~.  ..  . 

marshal  to  re-  is  also  said  that  "no  omcer  commanding  a  guard. 

ceive  prisoners.  i     i        i     n          /.  • 

or  provost-marshal,  shall  refuse  to  receive,  or 
keep  a  prisoner  committed  to  his  charge  by  an 
officer  belonging  to  the  forces  of  the  United 
States  ;  provided,  the  officer  committing  shall, 
at  the  same  time,  deliver  an  account  in  writing, 
signed  by  himself,  of  the  crime  with  which  the 
said  prisoner  is  charged  ;"2  nor  shall  an  "  officer 
commanding  a  guard,  or  provost-marshal,  pre- 
sume to  release  any  person  committed  to  his 
charge,  without  proper  authority  for  so  doing.''3 
The  general  regulations  have  established  the 
rule,  that  "  all  prisoners  under  guard,  without 
written  charges,  shall  be  released  by  the  officer 
of  the  day  at  guard-mounting,  unless  orders  to 
the  contrary  should  be  given  by  the  command- 
ing officer  ;"4  and  by  the  same  authority,  a  com- 
manding officer  is  empowered,  upon  application 
of  the  prisoner,  to  allow  larger  limits  to  an  offi- 
cer in  arrest,  than  those  pointed  out  in  the  arti- 
cles of  war.5 

Prisoner  may  be         But  it  HlUSt   be    observed,  that  it  does   not   fol- 

released.  at  the    ••  .  -i      ,  •.  •>  j  • 

low  as  a  consequence,  that  because  soldiers  may 


commat  mgo-  no^  ^  kep£  jn  confinement  for  a  longer  period 
than  eight  days,  that  they  cannot,  therefore,  be 
released  sooner  without  trial.  The  discretion 
of  a  commanding  officer  may  justly  be  exercised 
in  such  questions,  and  greatly  for  the  furtherance 

1  79th  Art.  of  War. 

«  80th  Ibid.  :  for  the  Navy,  see  38th  Art.,  p.  63,  Naval  Laws. 

»  8l8t  Art.  of  War.          «  212th  Par.  «  207th  Par.  G.  R. 


PRELIMINARIES    TO   TRIAL.  73 


VI. 


of  discipline.  Such  an  act  on  his  part  may  be  CHAPTER 
true  leniency  towards  a  prisoner,  and  operate  in 
a  most  beneficial  manner  upon  his  character  and 
future  behavior.  By  inducing  reflection,  in  the 
mind  of  the  prisoner,  a  happy  reformation  may 
be  brought  about ;  and,  indeed,  so  far  from  being 
enjoined  against  such  a  course,  the  article  of  war 
appears  to  provide  for  such  cases,  by  permitting 
a  soldier  to  be  confined,  at  the  discretion  of  the 
commanding  officer,  for  the  space  of  eight  days. 

The  80th  article  of  war,  which  provides  for  or  the  written 

.  .  rr*  statement  of  th« 

the  reception  of  a  prisoner  by  an  omcer  com-  crime  of  th« 

mm  -i-ii  •  f  •  prisone- 

mandmg  a  guard,  and  the  making  of  a  written 
statement  of  the  crime  with  which  the  prisoner 
is  charged,  would  seem  to  admit,  on  the  part  of 
the  first  named  person,  the  right  to  reject  a  pris- 
oner, unless  such  a  written  statement  was  made. 
There  is  an  essential  difference,  certainly,  in  the 
language  of  the  article  of  war  existing  for  the 
government  of  the  British  army,  and  that  of  our 
own,  by  the  introduction  in  the  latter  of  the 
word  provided.  It  seems  to  be  the  better  opinion, 
that  in  the  English  army,  an  officer  of  the  guard, 
or  a  provost-marshal,  would  not  be  justifiable  in 
rejecting  a  prisoner,  because  tlie  crime,  as  it  is 
termed,  was  not  given  in,  and  that  on  the  ground 
or  principle,  that  the  officer  committing  might 
have  sufficient  reasons  to  extenuate  or  excuse 
the  omission  of  such  duty ;  or  that  the  presence 
of  a  committing  officer  might  be  required  imme- 
diately elsewhere,  and  for  purposes  admitting  of 
no  delay.  Under  such  circumstances,  therefore, 
great  inconveniences  and  injuries  might  result 
to  the  service  by  the  positive  refusal  to  receive  a 
prisoner. 

10 


74  PRELIMINARIES    TO   TRIAL. 

CHAPTER         The  language  of  the  article  of  war,  upon  this 
subject,  for  the  army  of  the  United  States,  has, 


ticfi?oervvartr~  however,  been  thought  generally  to  give  to  a 
wrrod?  ^  ob"  commanding  officer  of  a  guard  the  right  to  reject 
a  prisoner,  unless  a  written  charge  be  handed  in. 
This  interpretation  of  tlie  article  is  derived  from 
a  very  literal  reading  of  it,  and  could  not  be 
maintained,  if  the  purposes  and  intention  of  the 
same  were  duly  considered.  The  objects  had  in 
view  for  attainment  by  this  particular  article, 
were  of  military  significance,  and  public  utility, 
and  under  the  pressing  exigencies  of  military 
life  might  be  entirely  frustrated,  were  a  prisoner 
or  prisoners  to  be  summarily  rejected  by  the 
commanding  officer  of  a  guard.  So  far  as  any 
personal  responsibility  may  attach  to  his  act,  he 
may  exercise  .a  becoming  prudence,  to  satisfy 
himself  of  the  character  of  him  who  commits, 
and  of  him  committed ;  that  is,  whether  the  one 
is  authorised  so  to  act,  and  the  other  amenable 
to  such,  or  military  authority.  It  is  a  safe  rule 
then,  and  one  having  a  direct  regard  to  the  pub- 
lic service,  which  ought  to  be  observed,  that 
whenever  a  prisoner  thus  offered  is  amenable  to 
military  law,  and  the  officer  confining  him  is 
known  and  responsible,  the  officer  commanding 
a  guard,  or  the  provost-marshal,  should  inva- 
riably receive  and  keep  in  custody  the  prisoner 
so  presented. 
Prisoners  con-  And  thus,  likewise,  in  the  case  of  soldiers 

fined  without  . 

written  char-  confined  without  written  charges :  as  the  facts 
are  generally  known  to  the  officer  of  the  day,  it 
might,  in  many  cases,  save  unnecessary  trouble, 
to  make  known  the  case  to  the  commanding  offi- 
cer,  instead  of  releasing  the  prisoner  at  the  next 


PRELIMINARIES    TO   TRIAL.  75 

guard-mounting,  as  the  general  regulations  for     CHAPTER 
the  army  authorize  to  be  done.     This  discretion        VI> 
could  never  be   productive  of  any   individual 
hardship ;  and  would,  if  intended,  allow  time  to 
the  officer,  who  confined  the  prisoner  to  make  a 
written  statement  of  the  offences,  and  which 
might  have  been  prevented  at  an  earlier  period 
by  urgent  or  important  duties. 

The  seventy-seventh  article  of  war,  has  very  of  the  arrest  of 
distinctly  described  the  manner  'in  which  an  of- 
ficer is  to  be  arrested.  It  is  therein  directed 
that  the  commanding  officer  who  orders  the  ar- 
rest shall  deprive  the  accused  of  his  sword — 
and  consequently  it  has  been  always  considered 
proper,  and  has  been  observed  as  an  invariable 
custom  for  an  officer  in  arrest  to  appear  without 
a  sword.  This  ceremony  though  frequently 
omitted,  is  yet  always  considered  to  have  had 
place,  and  the  mere  announcement,  by  a  proper 
agent,  (generally  a  staff-officer,)  of  the  command- 
ing officer,  to  an  officer,  that  he  is  to  consider 
himself  as  placed  under  arrest,  is  sufficient  to 
deprive  him  of  the  privilege,  for  the  time  being, 
of  carrying  his  arms,  or  of  exercising  any  of  the 
functions  of  his  office. 

Officers  when  arrested,  are  usually  allowed  Limits  to  aw»* 
certain  limits,  beyond  which  it  would  be  a  breach 
of  discipline  to  pass,  and  subject  them  to  very 
grave  consequences.  Should  the  crime  alleged 
against  the  officer  be  of  a  very  aggravated,  or 
heinous  character,  such  as  might  reasonably  be 
supposed,  sufficient  to  induce  the  accused  to  flee 
or  escape — he  would  then,  in  such  case,  be  kept 
closely  confined,  or  under  the  surveillance  of  a 
sentry. 


76  PRELIMINARIES   TO   TRIAL. 

CHAPTER         Non-commissioned  officers  are  not  to  be  con- 
fined, in  the  guard-house,  and  mixed  with  pri- 
vates, but  shall,  according  to  the  60th  paragraph 
general  regulations,  be  arrested  and  con- 


&C.86'  nned  to  quarters,  or  other  limits,  except  in  ag- 
gravated cases,  where  escape  may  be  antici- 
pated. 

confinement  of  Private  soldiers  are  always  confined  to  the 
guard-house,  or  prison-room,  if  such  be  provided 
at  the  post,  and  continue  so  confined  until  the 
announcment  of  the  proceedings  of  the  court  by 
which  they  have  been  tried. 

or  the  27th  Art-       There  is,  by  the  twenty-seventh   article  of 

icleWarjpow-  J  J 

er  to  inferiors  to  war,  extraordinary  powers  conferred  on  officers 

suppress  quar-  J  J    J  /•         j.u 

reis,  &c.,  &C.  of  every  grade  and  degree,  for  the  suppression 
of  "  quarrels,  frays,  and  disorders,"  and  in  cases 
contemplated  by  the  article,  a  senior  officer  is 
liable  to  arrest  by  his  junior ; — and  the  law  re- 
quires, on  the  part  of  all  persons  subjecting 
themselves  to  the  exercise  of  such  authority  by 
the  junior,  or  other,  to  give  the  most  implicit 
obedience  to  the  same.  This  is  a  wholesome 
check  to  the  exasperation  of  feeling,  and  tumult 
of  passion,  which  might  in  some  circumstances 
be  exhibited  by  men  whose  rank,  years,  and  ser- 
vices, would  operate  as  a  very  hurtful  example 
to  others,  youthful  and  inexperienced  —  and 
therefore  a  strong  motive  to  suppress  such  vio- 
lence was  necessary  to  be  offered,  which  should, 
at  the  same  time  appeal  to  their  professional  in- 
terests, and  personal  pride. 

An  officer  can-      The  general  regulations  for  the  army  point 

right,eiaacour°t  out,  that  "  an  officer  has  no  right  to  demand  a 

self 'or  olhers™  court-martial  on  himself,  or  on  others  ;  the  gene- 

ral-in-chief  or  officer  competent  to  order  a  court, 


PRELIMINARIES   TO   TRIAL.  77 

being  the  judge  of  its  necessity."     "Nor  has  an     CHAPTER 
officer,  who  may  have  been  placed  in  arrest  any        VL 
right  to  demand  a  trial,  or  to  persist  in  consider- 
ing himself  under  arrest  after  he  shall  have  been 
released  by  proper  authority." 

There  is  no  exception  made  to  the  rule  last  Remedy  for 

,.  ..  .„,.          ..  grievances,  and 

stated,  and  under  its  provisions,  if  arbitrarily  per-  the  mode  of 

. r  J  r  seeking  for  «• 

sisted  in,  omcers  might  sutler  great  grievances,  dress. 
But  there  is  a  means  of  seeking  a  remedy  for  all 
grievances  inflicted  by  the  improper  exercise  of 
power — and  it  is  easy  to  be  conceived  that  an 
officer  placed  in  arrest,  and  charged  with  acts, 
impugning  seriously  his  official  or  personal  repu- 
tation, would  suffer  such  grievance,  were  he  af- 
terwards restored  to  duty,  and  further  proceed- 
ing or  inquiry  denied  him. 

The  thirty-fourth  article  of  war,  provides,  that, 
"  If  any  officer  shall  think  himself  wronged  by 
his  colonel  or  the  commanding  officer  of  his  re- 
giment, and  shall  upon  due  application  being 
made  to  him,  be  refused  redress,  he  may  com- 
plain to  the  general  commanding  in  the  state  or 
territory  where  such  regiment  shall  be  stationed, 
in  order  to  obtain  justice ;  who  is  hereby  re- 
quired to  examine  into  the  said  complaint,  and 
take  proper  measures  for  redressing  the  wrong 
complained  of,  and  transmit  as  soon  as  possible, 
to  the  department  of  war,  a  true  state  of  such 
complaint,  with  the  proceedings  had  thereon." 

By  authority  of  this  article  it  is  believed,  that  pfthe34thArt< 
an  officer  has  an  open  way  presented  for  the  lcleof  War' 
presentation    and    removal   of   all    grievances, 
which  may  affect  him  in  the  nature  of  a  wrong. 
This  article  has  by  some  been  supposed,  to  be 
intended  and  confined,  to  wrongs  perpetrated,  or 


78  PRELIMINARIES    TO   TRIAL. 

CHAPTER  supposed  to  be  perpetrated,  by  the  commander 
VI'  of  a  regiment,  and  that  such  as  are  suffered  from 
a  higher  source,  have  not  the  same  means  offer- 
ed for  speedy  redress.  It  is  apprehended,  how- 
ever, that  such  a  view  of  it  is  not  consistent 
with  the  purposes  for  which  it  was  enacted,  or 
agreeable  to  just  rules  of  interpretation.  The 
object  of  the  rule  is  the  prevention  of  wrongs  as 
well  as  for  the  redressing  of  them,  and  must 
have  an  equal  application  to  every  officer  of  the 
army.  Now  there  are  bodies,  or  portions  of  the 
army,  which  have  not  a  regimental  organization, 
and  consequently,  such  portions  would  be  ex- 
cluded from  the  benefits  of  this  article  were  such 
an  interpretation  to  obtain.  The  nature  of  it  is 
remedial,  and  must  be  construed  accordingly, 
and  as  it  is  evident  it  was  intended  to  present  to 
the  inferior  officer  a  means  of  redress  of  the 
wrongs  inflicted  or  caused  by  his  superiors,  such 
intention  must  prevail  over  the  literal  sense  of  the 
terms.  The  particular  grade  then  of  the  person 
who  commits  the  wrong,  be  he  a  regimental,  or  a 
general  officer,  cannot  affect  the  means  or  the 
right  of  the  sufferer  to  seek  for  redress  ;  and  this 
is  in  unison  with  the  rule,  that  "  Statutes  that 
are  remedial  and  not  penal,  are  to  receive  an 
equitable  interpretation,  by  which  the  letter  of 
the  act  is  sometimes  restrained  and  sometimes 
enlarged,  so  as  more  effectually  to  meet  the  ben- 
eficial end  in  view,  and  prevent  a  failure  of  the 
remedy."1 

The  article  of  war  not  only  provides  the 
means,  and  mode  of  redress  to  be  observed  by 
the  complainant,  but  it  takes  from  the  general 

"SO  l  1  Kent's  Com.,  p.  434 


PRELIMINARIES    TO   TRIAL.  79 

officer  to  whom  it  is  submitted,  all  discretion  to  CHAPTER 
authoritatively  dispose  of  it  by  his  own  judg-  YI> 
ment.  Upon  receiving  the  complaint  it  is  his 
duty,  as  the  article  requires,  to  take  proper 
measures  for  redressing  the  wrong  complained 
of;  and  such  measures  are  to  be  in  the  nature 
of  a  direct  and  exact  inquiry,  in  order  that  he 
may  make  a  report  thereon  to  the  department 
of  war.  There  is  no  particular  mode  of  inquiry 
pointed  out  by  the  laws,  and  it  would  appear 
that  the  examination  to  be  entered  into  must  be 
in  the  nature  of  ex  parte  statements,  or  official 
reports.  A  court  of  inquiry  cannot  be  summon- 
ed, because  the  matter  does  not  fall  within  the 
competency  of  the  general  to  convene  one. 
Courts  of  inquiry  are  "to  examine  into  the 
nature  of  any  transaction,  accusation,  or  impu- 
tation, against  any  officer  or  soldier," — and  such 
can  be  assembled  only  by  the  president  of  the 
United  States,  or  when  demanded  by  the  accused. 
A  complaint  then  of  a  wrong  suffered  would  be 
an  "  imputation "  against  another  officer,  and,  of 
course,  a  court  of  inquiry  could  not  be  assem- 
bled to  examine  into  the  same,  by  the  order  of 
the  general,  unless  the  officer  thus  impugned, 
should  demand  it. 

In  connection  with  the  above  article  of  war, 
the  next  or  thirty-fifth  article  of  war,  prescribes 
the  modes  of  procedure  to  obtain  justice,  for 
"  any  inferior  officer  or  soldier,  who  shall  think 
himself  wronged  by  his  captain  or  other  officer." 

No  officer  can  be  released  from  arrest,  except  NO  officer  to  bo 

v  ,i        .,         /.    .1  .  ..  ,  released  from 

by  authority  of  the  one  imposing  it,  or  by  a  su-  arrest  except  by 
perior  officer.     And  any  officer  who  shall  leave  Ej?*1 
his  confinement  before  he  shall  be  set  at  liberty 


80 


PRELIMINARIES    TO   TRIAL. 


CHAPTER 
VI. 


Breach  of  ar- 
rest. 


by  proper  authority  shall  be  cashiered.  Breach 
of  arrest  is  thus  considered  a  very  high  military 
misdemeanor,  and  to  prevent  the  exhibition,  on 
the  part  of  any  officer,  of  such  a  contempt  of  the 
discipline  of  war,  a  penalty  is  affixed  to  the 
offence,  which  being  peremptorily  commanded, 
leaves  no  discretion  in  a  court-martial  to  modify 
or  abate. 

There  has  been  a  variety  of  opinions,  among 
officers  of  the  army,  as  to  what  constitutes  a 
breach  of  arrest,  and  whether  divers  acts  com- 
mitted by  an  arrested  officer  would  not  amount 
to  that  crime.  By  some  it  has  been  said,  that 
any  act  on  the  part  of  the  arrested  officer,  which 
exerts  a  privilege  conferred  by  his  commission, 
or  which  assumes  an  active  military  character, 
as  the  giving  an  order,  the  wearing  of  his  sword, 
or  the  making  a  visit  of  etiquette  to  a  superior, 
though  within  the  limits  of  his  confinement, 
would,  in  fact,  be  a  breach  of  arrest.  But  these 
opinions,  it  is  thought,  are  erroneous,  and  the 
particular  acts  specified,  or  others  of  that  de- 
scription, do  not  constitute  the  crime  contem- 
plated by  the  article  of  war.  The  offence  being 
highly  penal,  the  act  must  be  in  accordance 
with  the  language  of  the  law,  or  else  the  pen- 
alty which  is  denounced  against  it  would  not 
necessarily  follow  ;  and  a  charge  exhibited 
against  an  officer  for  that  offence,  predicated 
on  conduct  referred  to  above,  would  be  defec- 
tive. Such  acts  would  be,  undoubtedly,  impro- 
prieties, and  some  of  them  offending  against  the 
injunctions  of  the  general  regulations  for  the 
army,  and  would  therefore  be  liable  to  animad- 
version and  punishment.  But  it  must  be  seen, 


PRELIMINARIES    TO   TRIAL.  84 

by  a  strict   adherence  to  the  language  of  the     CHAPTER 
seventy-seventh  article  of  war,  that  they  do  not        Y 
make  up  the  offence  spoken  of,  and  which  is 
there  clearly  distinguished  to  be  committed  only 
by  an  officer,  "  who  shall  leave  his  confinement, 
before  he  shall  be  set  at  liberty  by  his  com- 
manding officer,  or  by  a  superior  officer." 

A  court-martial  has  no  further  control  over  A  court  maniai 
the  kind  of  arrest  of  the  prisoner,  than  what  re-  onto0  prisoner 
gards  his  personal  freedom  in  court.  The  com-  c^i^nandin^ 

T  ,,•  •        i  . i  ••.••  officer  to  afford 

manding  officer  is  alone  the  responsible  person  facilities  for  the 
for  this ;  and  the  court,  therefore,  has  no  au- tr 
thority  to  require  any  indulgences,  or  to  exact 
any  restrictions  respecting  the  prisoner,  when 
not  in  court.  The  custody  of  the  prisoner's  per- 
son belongs  to  the  commanding  officer,  as  a  part 
of  his  command,  and  subject  to  his  discretion, 
and  a  case  is  quoted  in  which  the  commanding 
officer  refused  to  accede  to  a  suggestion  of  a 
court-martial  to  grant  a  prisoner  certain  indul- 
gence, and  was  justified  in  such  refusal.1  But 
while  the  prerogative  of  a  commanding  officer  is 
thus  secured  against  infringement,  by  the  acts 
of  a  too  indulgent  or  careless  court,  there  is  re- 
quired of  him  all  assistance  in  his  power  to 
facilitate  the  business  of  the  court ;  and  it  would 
be  a  serious  matter  of  accusation  against  him, 
were  he,  in  a  mistaken  opinion  of  his  own  po- 
sition, or  the  dignity  of  his  rank,  to  neglect  or 
refuse  those  aids  and  attentions  which  so  much 
conduce  to  the  quiet  and  expeditious  flow  of  the 
current  of  military  justice. 

It  is  considered  the  duty  of  the  judge  advo- 
cate, to  furnish  the  prisoner  with  a  copy  of  the 

1  Simmons  on  Courts  Martial,  p.  12L 
11 


82  PRELIMINARIES    TO   TRIAL. 

CHAPTER     charges  upon  which  he  is  to  be  tried,  at  as  early 
a  period  as  possible,  in  order  to  avoid  any  delay 


in  the  progress  of  the  trial.  Where  a  prisoner 
SK  ^as  receive(l  a  COP7  °f  tne  charges  through 
tir11  another  channel,  as,  for  instance,  the  adjutant 
pre'  general,  should  any  discrepancy  exist  between 
that  and  the  copy  submitted  to  the  court,  it 
cannot  be  pleaded  in  bar  of  trial,  but  the  court 
would,  under  such  circumstances,  where  the 
deviation  was  material,  no  doubt  afford  the 
prisoner  time  to  prepare  for  the  investigation 
by  delaying  proceedings.  This  course  is  clearly 
nothing  more  than  one  of  common  justice,  in- 
asmuch as  an  accused  person  should  have  a 
knowledge  of  the  offences  alleged  against  him 
previous  to  trial,  and  sufficient  time  allowed  to 
enable  him  to  defend  himself  against  them. 
charges  read  to  To  soldiers  who  cannot  read,  the  charges  are 
cannot6 read!: to  read  by  the  adjutant:  or  the  judge  advocate 
judgTadvocie!  visits  tlie  place  of  confinement,  and  there  in- 
structs them  as  to  the  nature  of  their  offences, 
and  gathers  from  them  their  means  of  defence, 
as  lists  of  witnesses,  &c.  The  attention  on  the 
part  of  the  judge  advocate,  to  the  consultation 
which  the  ignorance  and  peculiar  situation  of 
soldiers  call  for,  is  a  happy  means  for  him  to 
exercise  that  portion  of  the  functions  of  his 
office,  which  is,  to  some  degree,  expected  of  him 
as  counsel  for  the  prisoner,  and  to  prevent,  in 
many  instances,  the  perpetration  of  injustice. 
Recruits:  jus-  With  recruits  especially,  or  very  young  men, 
mv£u*  of°  who  have  been  apprehended  at  a  distance  from 
the  depot  or  station  to  which  they  are  attached, 
and  often  without  any  previous  investigation, 
consigned  to  the  guard-house,  under  a  charge  of 


PRELIMINARIES    TO   TRIAL. 


desertion,  there  to  await  the  assembling  of  a  CHAPTER 
general  court-martial  for  their  trial,  this  inter-  VI> 
course  is  productive  of  the  best  results ;  and  the 
writer,  in  his  capacity  of  judge  advocate,  can 
recur  to  many  instances  in  which  substantial 
justice  has  been  ensured  to  all  parties  by  such 
means.  Soldiers  are  proverbially  careless,  and 
frequently,  when  confined  on  charges,  to  be 
brought  to  trial,  become  reckless  of  their  situa- 
tion, and  regardless  of  the  proper  means  to  es- 
cape therefrom.  A  little  attention,  therefore,  on 
the  part  of  the  judge  advocate  prior  to  the  ar- 
raignment, will,  in  frequent  cases,  save  the  indi- 
vidual from  an  undeserved  rigor  of  punishment, 
and  preserve  to  the  service  an  active,  faithful, 
and  efficient  man. 

The  crimes  for  which  soldiers  are  generally  crimes  against 
tried,  are  set  forth  in  a  very  concise  and  simple 
manner,  nor  is  it  often  that  any  complication  of  guage* 
facts  exist  to  render  them  subtle  or  difficult.  It 
is  not  probable,  therefore,  that  any  prejudice  is 
likely  to  result  to  the  prisoner  by  conversation 
with  the  judge  advocate,  prior  to  trial,  and  still 
less  so  is  it,  that  the  latter  person  would  attempt, 
by  his  position,  to  surprise  tlie  accused  into  rev- 
elations to  be  afterwards  used  against  him,  or  to 
offer  him  false  or  deceptive  counsel. 

It  has  been  the  custom  of  the  service  to  ap-  List  of  witness- 
pend  to  the  charges,  a  list  of  the  witnesses  in- 
tended  to  be  called  for  their  support,  though  it  is 
not  conceded  as  a  right  on  the  part  of  the  priso-  ' 
ner  to  demand  it ;  and  the  judge  advocate  also 
requires  of  the  prisoner  the  names  and  designa- 
tions of  the  witnesses  he  intends  to  call.     Per- 
haps there  may  be,  in  this  practice,  some  objec- 


84  PRELIMINARIES    TO   TRIAL. 

CHAPTER     tions,  inasmuch  as  it  offers,  to  some  extent,  the 
VI'        means  of  improper  influences  being  brought  to 
bear ;  but  as  witnesses  are  frequently  to  be  sum- 
moned from  places  at  a  considerable  distance 
from  the  point  of  assembling  the  court,  and  great 
delay  be  experienced  were  such   persons  not 
timely  notified,  the  custom  possesses  advantages 
which  more  than  compensates  for  any  probable 
inconveniences  which  might  result. 
judge  advocate       In  summoning  persons  designated  as  witnesses 

to  exercise  a  dis-  11  -, 

cretion  in  sum-  by  the  accused,  the  iudge  advocate  is  expected 

momng  wit-  •  •*       ° 

nesses.  to  exercise   sonle  discretion.     From  a  natural 

anxiety  and  excitement,  a  prisoner  frequently 
deems  the  presence  of  some  essential  to  his  de- 
fence, when  in  fact  there  exists  but  the  slightest, 
if  any,  reason  for  it.  This  happens  more  usually 
where  witnesses  are  named,  in  order  to  testify 
to  character,  which  is  a  portion  of  the  evidence 
in  many  cases,  in  which  the  prisoner  indulges  an 
over-estimate  of  its  importance,  and  frequently 
when  there  is  no  proper  or  necessary  cause  for 
seeking  it.  In  all  such  cases  then,  the  judge  ad- 
vocate must  consider  the  interests  of  the  public, 
as  well  as  wishes  of  the  individual  to  be  tried. 
A  ready  acquiescence  with  such  wishes  would 
be  often  of  positive  prejudice  to  the  service,  by 
withdrawing  officers  from  their  appropriate  du- 
ties, from  great  distances  and  at  large  expense. 
Such  examples  have  been  given  in  divers  cases ; 
and  upon  the  presentation  or  examination  of  the 
witness  called,  it  has  proved  as  might  have  been 
anticipated,  that  he  possessed  neither  knowledge 
of  any  facts  connected  with  the  trial,  or  opin- 
ions relevant  to  the  matter,  which  could,  in  any 


PRELIMINARIES    TO   TRIAL.  85 

degree  tend  to  the  elucidation  of  the  subject  of     CHAPTER 
inquiry. 


Should  the  judge  advocate  decline  to  issue  his  Application  to 

,  , ...    be  made  to  tha 

summons  for  a  witness,  upon  the  suggestion  of  court  to  hava 

.  .  ,        ,  ,        .         ,  ,       ,         witnesses  sum- 

the  prisoner,  the  latter  may  submit,  through  the  moned. 
judge  advocate,  an  application  to  the  court ;  and 
this  is  recommended  to  be  done  forthwith,  in 
order  to  obviate  any  delay.  The  court  having 
heard  the  particular  reasons  for  calling  a  wit- 
ness, will  take  into  consideration  the  reasons 
offered,  and  decide  accordingly ;  the  whole  pro- 
ceeding thereupon  being  entered  upon  the  record. 

Although  the  names  and  designation  of  the  witnesses  m>t 

,,„,  .  i     1    /•  previously  na- 

witnesses,  both  for  the  prosecution  and  defence,  med  may  be 
are  furnished,  it  does  not,  therefore,  follow  that  evidence.  p 
either  party  is  precluded  from  examining  others 
who  have  not  been  indicated ;  on  the  contrary, 
any  witnesses  may  be  called  and  depose  under 
the  usual  restrictions,  at  any  time  during  the 
progress  of  the  trial. 

It  has  been  made  a  question  of  how  far  a  courts  martial 

,  ,.    ,  •    i  ,  •    •  not  competent 

court  martial  can  exert  any  right  to  originate  to  originate  ev 
evidence ;  that  is,  of  calling  for  witnesses  not 
produced  by  either  party.  This  is  certainly  a 
matter  of  some  consequence,  and  ought  to  be 
definitely  settled.  The  utmost  that  has  yet  been 
conceded  on  this  point  is  to  permit  a  court  to 
examine  an  individual  who  has  been  alluded  to 
in  the  course  of  the  trial,  and  whose  testimony 
may  elucidate  some  point  referred  to.1  But  even 
this  is  of  somewhat  doubtful  propriety,  while 
the  greater  latitude  of  calling  for  new  witnesses 
in  order  to  investigate  more  fully  any  matters 

1  Simmons   on    Courts  Martial,  p.  413.     Kennedy  on  Courts 
Martial,  p,  141. 


86  PRELIMINARIES   TO   TRIAL. 

CHAPTER     which  the  prosecution'  or  accused  has  not  fully 

— exposed,  is  in  the  opinion  of  the  writer  totally 

inadmissible. 

The  members  of  a  court-martial  are  sworn  to 
try  the  matter  before  them  "  without  partiality, 
favor,  or  affection,"  and  in  order  to  do  so  it  is  their 
duty  to  attentively  listen  to,  and  consider  every 
thing  presented  by  the  parties,  without  taking 
any  active  part  in  the  means  of  prosecution  or 
defence,  beyond  what  the  strictest  duty  enjoins. 
To  summon  witnesses  of  their  own  motion, 
would  necessarily  be  an  attempt  to  supply  the 
deficiencies  that  may  occur  in  the  proof  adduced 
by  either  party,  and  consequently  a  departure 
from  the  impartiality,  which  their  oath  requires, 
— and  it  is  very  certain  that  the  court  cannot  re- 
quire the  presence  of  a  witness  from  their  own 
knowledge  of  the  circumstances  of  the  case,  and 
who  has  not  been  cited  by  the  prosecution  or  de- 
fendant. 

A  course  of  this  kind  on  the  part  of  a  court- 
martial  would  tend  to  complicate  the  proceed- 
ings, and  promote  injustice.  It  could  hardly  be 
expected  that  the  party  calling  a  witness  should 
not  have  some  interest  or  feeling  in  the  deport- 
ment, if  not  in  the  deposition  of  the  individual, 
and  an  attempt  by  the  opposite  side  to  impeach 
the  competency  or  credibility  of  such  a  witness, 
would  to  a  certain  extent  involve  the  court  in 
the  inconsistencies  and  improprieties  of  appear- 
ing as  an  interested  party.  These  remarks, 
merely  glancing  at  the  question,  may  it  is  hoped 
be  sufficient  to  awaken  attention  to  such  a 
course  of  proceeding,  should  it  ever  be  at- 
tempted in  the  military  service  of  the  United 


PRELIMINARIES    TO   TRIAL.  87 

States,  and  prevent  its  accomplishment,  as  it     CHAPTER 
would  be  most  certainly  a  violation  of  the  prin-        VI' 
ciple  upon  which  depends  the  impartial  admin- 
istration of  justice. 

The  members  of  courts-martial  are  detailed  Members  of 

.,  •,          _  .         ,,  11    i        i  •  courts  martial 

for  such  service  from  a  rollster  kept  at  regimen-  detailed  from 
tal  or  garrison  head-quarters,  and  for  general 
courts-martial,  at  the  head-quarters  of  the  army, 
and  of  departments. 

No  proceedings  or  trial  can  be  carried  on  except  Hours  for  pro- 

11  /»     .    i        i   i      i    •       i  •          ceedings. 

between  the  hours  of  eight  o  clock  in  the  morning, 
and  three  o'clock  in  the  afternoon,  except  in 
cases,  which,  in  the  opinion  of  the  officer  ordering 
the  court-martial,  require  immediate  example.1 

A  court-martial  once  constituted  by  competent  A  court  martini 
authority,  continues  in  existence  till  dissolved  by  S 


the  same  or  superior  authority.  When  charged 
to  try  a  prisoner,  if  it  has  proceeded  with  the 
arraignment  it  cannot  be  dissolved  without  pro- 
ceeding to  judgment,  except  in  cases  where  by 
the  death  or  illness  of  members,  it  has  been  re- 
duced below  the  requisite  number  ;  and  where 
the  illness  of  the  prisoner,  which  may  be  of  un- 
certain duration,  suspends  the  business  of  the 
court.  The  prisoner  under  such  circumstances 
would  be  exposed  to  a  future  trial. 

The  adoption  of  the  above  rule  is  founded  in 
substantial  v  reason,  and  operates  as  a  safeguard 
to  members  of  the  military  service. 

Should  a  member  be  prevented  from  attend-  courts  martial 

f  -11  j.1-  '^          -L     f  may  adjourn  to 

ing  from  illness,  or  other  cause,  either  before  or  await  the  at- 
after  the  commencement  of  a  trial,  the  court 
may  adjourn  from  day  to  day  for  a  reasonable 
time,  to  await  his  attendance  :  and  should  the 

»  The  hours,  for  proceedings  of  Naval  Courts,  are  not  limited  by  law. 


88 


PRELIMINARIES    TO   TRIAL. 


CHAPTER 
VI. 


Members  may 
meet  and   ad- 
journ from  day 
to  day,  when 
the  complement 
is  not  present. 


Courts  martial 
cannot  change 
the  place  or 
time  of  meet- 
ing. 


Supernumerary 
members. 


seat  of  a  member  be  permanently  vacated,  the 
court  will  proceed,  unless  the  number  present 
falls  below  the  prescribed  minimum.1 

The  officers  detailed  for  the  composition  of  a 
court-martial,  may  meet  and  adjourn  from  day 
to  day,  when  the  legal  complement  is  not  pre- 
sent— but  no  judicial  act  in  such  a  case  can  be 
recognised. 

The  day,  and  the  place  of  meeting  of  a  court 
martial,  can  only  be  changed  by  the  authority 
ordering  the  same.  It  has  happened  that  a 
court-martial,  has  adjourned  its  sessions  from 
one  place  to  another,  at  the  mere  will  or  vote 
of  the  members — but  such  act  was  manifestly 
improper  and  beyond  the  competency  of  the 
court.2  Whenever  it  becomes  expedient  or  ne- 
cessary to  change  the  place  of  meeting,  the  rea- 
sons will  be  reported  to  the  head-quarters 
whence  emanated  the  order  constituting  the 
court ;  and  authority  from  thence  must  be  given 
before  the  change  can  take  place. 

Thirteen  members  being  the  greatest  number 
authorised  for  a  general  court-martial,  it  follows 
that  it  is  only  when  such  a  complement  is  re- 
quired that  the  necessity  of  supernumerary  mem- 
bers occurs.  It  is  therefore  the  custom,  and  it 
is  of  importance  to  prevent  delay,  and  the  repe- 
tition of  labor,  whenever  the  maximum  number 
is  detailed  for  a  court-martial,  to  add  thereto,  two 
or  more  supernumeraries,  who,  in  case  of  the  ab- 
sence of  any  of  the  regular  members,  or  the  va- 

1  The  naval  laws  require  the  court  to  proceed  provided  five  be 
present.  (Naval  Laws,  Art.  39*  p.  66.) 

8  An  instance  of  this  kind  occurred  some  years  ago,  with  a  na 
val  court  martial,  in  the  Mediterranean. 


PRELIMINARIES    TO   TRIAL.  89 

cation  of  their  seats  at  any  time  of  the  proceed-     CHAPTER 
ings,  take  their  places,  and  the  trial  continues. 


Supernumerary  members,  at  the  assembling  supernumerary 

•*•  i          i      •        i  i  members  may 

of  the  court,  take  their  places  at  the  board,  ac-  discuss  interlo- 

cutory  ques- 

cording  to  rank  (they  are  of  course  always  the  tions,  but  can- 

,  ,       not  vote. 

junior  members)  and  are  sworn  with  the  body 
of  the  court,  and  this  is  done  to  guard  against 
the  inconvenience  which  might  arise  from  the 
absence  of  a  member.  These  additional  mem- 
bers are  present  of  course  during  the  progress 
of  the  trial,  and  are  permitted  to  discuss  with 
the  court,  in  close  session,  any  question  which 
may  arise,  though  they  cannot  vote  for  the  deter- 
mination of  the  same.  At  the  termination  of 
the  evidence  and  defence,  when  the  court  is 
closed  for  final  judgment,  the  supernumerary 
members  retire,  as  there  is  no  occasion  for  their 
presence,  but  they  must  remain  at  the  place  of 
sessions,  until  the  business  of  the  court  is  com- 
pleted, as  it  might  happen,  from  some  unforeseen 
casualty,  that  the  attendance  of  one  or  more  of 
them,  in  this  last  stage  of  the  trial,  might  be 
needed  to  supply  a  vacancy. 

Challenge  to  a  supernumerary  is  made  at  the  challenge  to 
same  time,  when  the  other  members  are  chal-  member""51 
lenged,  and  the  propriety  of  this  must  be  appa- 
rent, as  the  supernumerary  member  exercises  a 
certain  influence  by  discussing  with  the  court, 
and  determining  to  some  extent  the  disposition 
of  interlocutory  opinions,   which   may  have   a 
greater  or  less  bearing  upon  the  issue  of  the 
trial. 

Should  a  court  be  reduced  below  the  mini-  courts  martial 

.  reduced  below 

mum  number,  an  adjournment  sine  die,  or  for  the  minimum: 

.  .  T,  i.  .  how  to  proceed. 

a  definite  penod  follows,  according  to  circum- 

12 


90  PRELIMINARIES    TO   TRIAL. 

CHAPTER     stances,  and  the  facts  are  reported  to  the  propel 

~ authority — and  this  authority  may  declare  the 

court  dissolved,  and  issue  a  new  warrant  for 
the  trial  of  the  prisoner.  The  members  who 
composed  the  first  may  make  part  of  the  second 
court,  but  they  are  liable  to  challenge  with  the 
new  members,  and  the  proceedings,  ab  initio 
must  be  de  novo. 

New  members.  It  has  been  maintained  by  some  that  new 
members  may  be  added  to  a  court-martial, 
(where  no  supernumerary  members  have  been 
detailed,)  if  such  persons  hear  or  be  well  in- 
formed of  the  evidence  given  previous  to  their 
attendance: — and  others  have  been  of  opinion 
that  such  addition  would  be  correct,  if  assented 
to  by  the  prisoner. 

To  determine  the  mode  or  course  of  proceed- 
ing by  the  consent  of  the  parties,  seems  to  be  a 
very  loose  if  not  dangerous  principle,  and  ought 
not  to  be  permitted  by  courts  except,  perhaps, 
where  it  applies  to  some  modification  in  the  ad- 
mission of  evidence.  The  rules  which  have  ob- 
tained for  the  direction  of  proceedings  in  courts 
of  justice  are  generally  founded  upon  some  gene- 
ral principles  of  equity,  or  public  policy,  which 
ought  not  to  be  set  aside  for  the  convenience  of 
individuals ;  and  upon  that  principle,  innova- 
tions and  irregularities  of  every  kind  might  be, 
by  the  consent  of  the  parties,  claimed  and  jus- 
tified. Captain  Simmons  in  his  work  on  courts- 
martial,  is  very  doubtful  of  its  propriety,  and 
only  admits  it  under  restrictions  which  amount 
to  nearly  the  same  thing  as  a  new  trial.  Major 
Vans  Kennedy  thinks  that  such  a  course  can  be 
with  safety  observed,  though  there  is  a  discrep- 


PRELIMINARIES    TO   TRIAL.  91 

ancy  of  opinion  upon  the  same  subject  relative     CHAPTER 
to  the  temporary  absence  of  a  member,  which        "**' 
contradicts  his  judgment. 

The  fact  that  all  the  proceedings  of  a  court- 
martial  are  reduced  to  writing,  and  are,  there- 
fore, easily  referred  to,  renders  this  course  less 
objectionable  than  it  would  appear,  were  such 
not  the  case ;  and  for  such  cause,  as  well  as  the 
detriment  and  inconvenience  which  the  service 
might  suffer,  courts-martial  have  not  been  ex- 
pected, in  such  cases,  to  adhere  to  the  strict 
rules  of  legal  procedure.  When  a  new  member 
has  been  thus  admitted,  the  proceedings  were 
read  over,  and  each  witness  recalled,  during  the 
reading  of  his  evidence,  so  that  the  new  mem- 
bers might  be  satisfied  that  it  is  his  evidence, 
and  likewise  have  an  opportunity  of  putting 
further  questions  to  him  if  necessary. 

This  is  the  mariner  to  be  strictly  observed,  it  Court  to  be  r* 
is  said,  when  new  members  are  admitted, — 
though  it  is  thought  to  be  a  safer  means  to  re- 
sort to  a  new  trial,  by  the  constitution  of  an- 
other court.  Under  the  rules  which  govern 
courts-martial  in  the  army  of  the  United  States, 
it  is  not  probable  that  such  cases  will  arise. 
The  appointment  of  supernumerary  members, 
where  the  court  is  full,  obviates  the  risk,  and 
presents  nothing  objectionable  to  the  interests 
of  the  prisoner,  as  he  can  challenge  such  mem- 
ber at  the  opening  of  proceedings.  In  other 
cases,  where  the  court  is  composed  of  less  than 
thirteen,  the  legal  standard  of  five  as  the  least 
number,  or  some  other,  declared  by  the  order 
constituting  the  court,  is  the  limit  below  which 
it  cannot  fall,  and  proceed  with  the  trial ; .  hence, 


. 

*>     ^ 

92  PRELIMINARIES    TO   TRIAL. 

CHAPTER  it  follows  that  all  above  that  number,  though 
YL  regular  members,  are  also  situated  in  the  light 
of  supernumeraries,  which  provides  for  casual- 
ties. Under  such  circumstances,  it  is  not  likely 
that  a  court-martial  will  be  reduced  below  the 
number  competent  to  the  exercise  of  judicial 
authority.  But  should  such  a  case  arise,  it  is 
to  be  preferred,  as  signified  above,  that  the 
court  be  dissolved,  and  another  ordered  for  a 
new  trial. 
Member  absent  If  a  member  of  a  court-martial,  should  for 

from  his  place 

during  the  trial   anv  cause  be  absent  from  his  seat  during  the 

cannot  resume  ° 

it.  course  of  the  trial,  he  cannot  resume  it.  The 

supernumerary  member  would  have  assumed 
his  place,  or  it  would  have  been  considered  va- 
cated, and  thus  he  is  excluded  from  any  further 
participation  in  the  trial.  All  the  members  of  a 
court-martial,  or  such  a  number  of  them  as  are 
legally  competent  to  continue  the  trial,  must  be 
present  during  the  proceedings,  on  the  reception 
of  testimony  ;  and  resumption  of  his  place,  by  a 
member  who  had  been  absent  for  any  period 
while  proceedings  were  going  on,  would  vitiate 

witnesses  ex-    the  judgment  of  the  court.     It  is  essentially  ne- 

amined  in  the  .•,  ..  -.  j   .        ., 

presence  of  ail  cessary  that  witnesses  be  examined  in  the  pre- 
sence of  all  the  members  of  the  court,  for  no  act 
performed  by  a  part  of  the  court  can  be  legal — 
and  it  is  on  this  principle  that  the  strongest  ob- 
jection to  having  new  members  added  to  a  court 
is  founded.  The  mere  reading  the  recorded  tes- 
timony in  the  presence  of  the  deponent  is  not 
sufficient.  A  case  of  this  description  is  quoted 
by  Captain  Simmons,  p.  176,  in  which  the  re- 
viewing authority  said,  "  This  proceeding  is  so 
directly  at  variance  with  the  practice  of  courts- 


PRELIMINARIES    TO    TRIAL. 


:f  93 

martial,  and  the  principles  of  justice,  that  it  may     CHAFIER 
be  held  to  affect  the  legality  of  the  judgment  of         VL 
the  court,"  and  concluded  his  remarks  by  stating 
that  "  the  irregularity  before  observed  has  ren- 
dered nugatory  the  sentence  of  the  court-martial." 

There  is  no  president,  as  such,  appointed  for  NO  president 
a  court  martial,  but  the  senior  member  presides  seme"  member 
by  virtue  of  such  seniority.1  Having  no  special  I%hts  and  duty. 
authority  as  an  officer  of  the  court,  he  exerts  no 
greater  authority  than  what  is  necessary  for  the 
preservation  of  order  and  observance  of  deco- 
rum. And  in  voting  and  every  other  exercise  of 
his  judicial  capacity,  he  acts,  and  is  regarded 
in  the  same  light  as  other  members.  In  ques- 
tions of  order,  such  as  matters  relating  to  pro- 
priety of  deportment  of  an  individual  member, 
and  the  daily  routine  of  business  of  the  court, 
the  president  decides  of  his  own  motion ;  but  in 
all  others,  which  involve  a  consideration  of  pro- 
ceedings, a  vote  of  the  court  is  necessary.  Thus 
the  daily  regular  adjournments  of  the  court,  are 
directed  by  him  ;  but  an  adjournment  out  of  the  who  adjourns 

.  the  court. 

ordinary  course,  or  for  an  unusual  time,  that  is, 
longer  than  the  ensuing  day,  or  from  a  Saturday, 
over  to  the  succeeding  Monday,  and  which 
would  therefore  be  an  act  of  discretion,  would 
be  determined  by  a  vote  of  the  court. 

Should  an  adjournment  be  announced  by  the 
president,  to  which  a  member  might  have  some 
reason  for  objecting,  he  would  ask  leave  to 
present  such  objection,  which  thereupon  might 
be  submitted  for  decision  to  the  court. 

A  court  adjourns,  from  day  to  day,  andaccord- 

1  This  is  the  law  also  for  the  navy.    Roman's  Naval  Laws, 
Art.  35,  p.  64. 


94  PRELIMINARIES   TO   TRIAL. 

CHAPTER     ing  to  the  necessity  of  the  case  may  adjourn 
VI*        over  for  a  longer  period.1     On  an  adjournment 
sine  die,  the  court  is  reassembled  by  an  order 


longer  fr°m  the  same  authority  by  which  it  was  con- 
stituted: and  upon  such   an   adjournment,  the 
members  (240  par.,  general  regulations)  will  re- 
..<*•;«       turn  to  their  respective  corps  and  duties,  unless 

otherwise  ordered. 
President  or-         The  president  directs  the  court  to  be  cleared 

ders  the  court    „,,.  .  i'  •    i       • 

to  be  cleared,  for  deliberation  when  he  thinks  it  expedient,  01 
for  any  incidental  discussion,  at  the  request  of  a 
member,  or  the  judge-advocate. 

Prisoner  and         The  prisoner  and  witnesses  are  to  be  treated 

witnesses  to  be  .  ,        _  , 

treated  with  re-  by  every  member  with  due  respect,  and  re- 
proachful words,  or  contemptuous  manner  used 
or  manifested  towards  them  by  any  member, 
would  be  an  offence  deserving  severe  censure. 
The  president  is  responsible  that  all  persons 
called  before  the  court  are  treated  in  a  becoming 
manner. 

The  president        In  case  of  intemperate   words  used,  or  im- 

to  report  im-  . *  -1,1 

proper  behavior  proper  behavior  exhibited  by  any  member,  the 

of  members.  r  /.         J       .  ' 

president  will,  by  virtue  of  his  position,  enforce 
order,  and  further  will  report  the  same  to  the  of- 
ficer ordering  the  court  to  assemble. 
Parties  may  The  parties  before  the  court  may  claim  the 

claim  the  bene-  /•  •  i 

fu  of  the  court's  benefit  of  its  opinion  upon  any  question  of  law 

opinion. 

W          or  custom,  arising  and  disputed,  in  the  course  of 
the  proceedings,  and  in  the  decision  of  which 
either  may  be  interested. 
conn  deiiber-        Deliberation  of  the  court  takes  place  always 

ates  with  closed         .  .... 

with  closed  doors.     At  other  timers  it  is  open  to 
the  public,  military  or  otherwise,  with  such  re- 

1  Naval  courts  martial,  during  a  trial,  are  bound  by  the  law,  to 
adjourn  from  day  to  day. 


PRELIMINARIES    TO   TRIAL.  95 

strictions  as  the  convenience  of  the  court  and     CHAPTER 
parties,  and  capacity  of  the  room  may  dictate. 


A  majority  of  votes  determines  all  questions  Majority  of 
(not  the  finding  of  the  court),  and  where  there  mines. 
is  an  equality  oj1  votes,  it  is  decided  according  to 
the  manner  in  which  the  question  is  put, — that 
is,  in  an  affirmative  or  negative  form. 

A  court-martial  duly  constituted  and  organ-  proceedings  of 
ized,  cannot  have  its  proceedings  interfered  with  canSKtS- 
by  the  highest  military  authority,  much  less  be  SteT*'  n°r 
dictated  to.    Bound  by  the  solemnity  of  an  oath, 
arid  the  obligations  which  general  society  impose 
for  the  observance  of  justice,  their  course  is  de- 
termined by  the  law  and  customs  of  war,  and  in 
cases  of  doubt  by  their  consciences  and  under- 
standings.     But    members    of    courts-martial,  Members  re- 
would  do  well  to  constantly  bear  in  mind,  that  theiTacts  coi- 
though  their  judgments  may  not  be  dictated  to,  " 

or  be  controlled  by  any  authority,  yet  they  are 
collectively  and  individually  responsible  to  the 
civil  courts,  for  any  abuse  of  power,  or  illegal 
proceedings.  There  is  no  instance  in  the  course 
of  the  annals  of  our  military  jurisprudence,  in 
which  an  appeal  has  been  made  to  courts  of 
civil  judicature  for  redress  of  wrongs  committed 
by  a  military  court,  but  there  are  a  number  of 
cases  cited  in  the  works  of  writers  on  the  prac- 
tice of  British  courts-martials,  in  which  prose- 
cutions have  been  instituted,  and  entertained  by 
the  civil  tribunals,  for  abuse  of  power,  or  illegal 
conduct  on  the  part  of  courts-martial. 

The  amenability  of  the  members  of  courts-  judge  advocate 
martial  to  the  civil  courts,  for  improper   acts,  " 


committed  in  their  military-judicial  character,  is  military  capa 
indisputable,  and  has  been  sustained  by  frequent 


his 

ary  cs 
city. 


96  PRELIMINARIES    TO   TRIAL. 

CHAPTER  decisions.  But  there  is  another  question,  reia- 
VL  ting  to  illegal  proceedings  of  courts-martial, 
whether  the  judge-advocate  is  responsible  or 
not  for  opinions  which  he  may  give,  not  yet  set- 
tled. A  diversity  of  opinion  exists  in  regard  to 
this  point,  and  the  best  writers  on  English  mili- 
tary law  are  at  variance  on  the  subject.  The 
question  has  not  yet  been  tried  by  any  case, 
and  there  exists  no  legal  decision,  whereby  the 
general  reasoning  of  the  inquirer  might  be  as- 
sisted. Captain  Simmons  expresses  his  deci- 
ded opinion  that  the  officiating  judge-advocate, 
whatever  degree  of  deference  may  be  due  to  his 
advice,  "is  not  responsible  to  any  court  of 
justice  for  any  opinion  which  he  may  give." 

To  this  opinion,  Captain  Hughes,  in  his  work 
entitled  "Duties  of  Judge  Advocates,"  vehe- 
mently objects,  and  cites  the  fact,  that  "Ken- 
nedy, Hough,  and  all  others  are  diametrically 
opposed  to  the  opinions  advanced  by  Major  Adye 
and  Captain  Simmons,"  and  then  adds,  "  But  the 
fact  that  there  is  a  difference  of  (minion,  is  a  con- 
vincing proof  of  the  necessity  that  exists,  that  a 
clear  exposition  of  the  law,  and  explicit  regula- 
tions on  this  subject  should  be  issued  by  author- 
ity" 

Such  is  the  state  of  opinion  in  regard  to  this 
point  in  the  British  army,  while  the  same  ques- 
tion in  the  United  States  army,  has  very  seldom, 
if  ever,  been  agitated.  It  is,  however,  a  matter 
of  some  interest,  and  might  tend  to  the  more 
cautious  action  of  courts-martial,  and  a  nicer  dis- 
crimination of  advice  offered  by  the  judge  advo- 
cate, if  the  responsibilities  of  this  officer  were 
clearly  understood  and  settled. 


PRELIMINARIES    TO   TRIAL.  97 

From  the  manner  in  which  the  judge  advo-  CHAPTER 
cate,  at  present,  is  appointed  to  officiate  at  trials  VI> 
before  military  courts,  responsibility  for  legal  ad- 
vice or  opinions  offered  by  him,  would  be  not 
only  unreasonable  but  approaching  the  ridicu- 
lous. There  is  now,  for  the  army,  no  establish- 
ed military  law  department,  and  the  consequence 
is,  that  it  frequently  happens  that  officers  with- 
out experience,  or  the  necessary  qualifications 
for  the  fulfilment  of  the  duties  imposed,  are  ap- 
pointed to  officiate  as  judge  advocates.  How 
then  can  it  be  expected  that  a  sound  discretion 
should  be  exercised,  or  a  prudent  foresight  man- 
ifested, an  efficient  intelligence  displayed,  or  a 
competent  knowledge  brought  to  bear,  to  make 
light  and  safe  the  path  in  which  a  court  should 
walk ! 

Hence  it  follows,  that  the  person  officiating  as 
judge  advocate  is  frequently  less  fitted  to  advise 
the  court,  than  any  individual  making  part  of 
it ;  and  of  course,  in  such  cases,  his  opinion,  if 
ever  asked,  is  received  with  very  little  deference, 
and  acted  upon  with  less  confidence. 

As  courts-martial  must  exercise  a  discretion 
of  their  own,  in  the  adoption  of  any  opinion  of- 
fered, or  acceptance  of  any  rule,  for  the  govern- 
ment of  their  proceedings,  and  are  not  at  all 
bound  to  follow  implicitly  the  opinions  of  the 
judge  advocate,  it  would  seem  that  any  decision 
of  theirs  should  not  involve,  in  any  liability  to 
future  censure  or  punishment,  that  person.  It 
is  true  that  his  agency  to  determine  their  course 
may  be  very  direct ;  but  still  he  is  without  a  ju- 
dicative  voice,  and  but  expresses  an  opinion 
(conscientiously,  it  is  presumed,)  in  the  perform- 

13 


*  f 

98  PRELIMINARIES    TO   TRIAL. 

CHAPTER     ance  of  a  duty.    Now,  if  the  opinion  be  so 
— clearly  expressed,  as  to  guard  against  misappre- 


hension, and  so  forcibly  illustrated  by  arguments 
or  authorities,  as  to  dissipate  doubt,  there  can 
be  no  risk  in  the  action  of  the  court ;  while,  on 
the  contrary,  if  doubt  still  exists,  the  court  may 
adjourn  to  make  a  reference  of  the  question,  or 
to  fortify  their  minds  for  a  future  consideration 
of  it. 

Every  facility,  and  means  to  come  to  a  proper 
understanding  of  the  subjects  before  them,  and 
to  avoid  error,  are  permitted  to  courts-martial 
by  the  power  inherent  in  them,  to  adjourn  from 
time  to  time,  when  the  mind  may  be  confused 
or  perplexed  by  new  or  unconsidered  questions, 
and  thus  prevent  mistakes  which  are  likely  to 
flow  from  hurried  or  precipitate  judgment.  From 
considerations  of  this  nature,  the  writer  thinks 
that  the  judge  advocate  is  not  responsible  to  any 
civil  court,  for  any  part  which  he  may  take  in 
the  proceedings  of  a  court-martial,  though,  as  a 
military  person,  he  is  undoubtedly  responsible  to 
the  authority  by  which  the  court  is  assembled, 
for  the  becoming  and  faithful  execution  of  the 
trust  confided  to  him. 

The  purpose  of  requiring  the  opinion,  or  ad- 
vice, of  the  judge  advocate  upon  doubtful  or 
controverted  points,  is,  (supposing  him  to  be  a 
person  of  sufficient  skill,)  to  enlighten  and  assist 
the  court.  Such  was  the  policy  in  view,  con- 
sidering the  court  as  an  administrative  body. 
But  this  is  not  all.  Inasmuch  as  the  members 
of  courts-martial  are  subject  to  military  law, 
and  the  judge  advocate  also,  when  appointed 
from  the  army,  it  was  a  means  to  show  upon 


PRELIMINARIES    TO   TRIAL.  99 

what   grounds   the   opinion  of  the   court  was     CHAPTER 

based,  as  well  as  the  capacity  and  zeal  with 111 

which  the  judge  advocate  performed  his  part. 
Thus,  it  is  evident  that  the  revising  authority, 
looking  solely  to  the  military  proprieties  of  their 
respective  places,  might  understand  how  the 
errors  of  one  found  some  palliation,  by  according 
with  the  opinions  of  him  appointed  to  inform 
them  in  the  law ;  and  how  the  other  was  ab- 
solved from  blame,  for  errors  committed  which 
his  advice  could  not  restrain. 

If  the  principles  above  stated  be  admitted,  it  Appointment 

i-iii  /•  «       i      i      °f  Judge  advo- 

would  seem  that  the  custom  (more  particularly  cates  from  civil 

.        i  .     .  ,  /•  IT  j   •      -u  \  Ufe  objection- 

in  the  navy,  it  is  no  longer  followed  in  the  army,)  able. 
of  appointing  persons  from  civil  life  to  officiate 
as  judge  advocates,  is  clearly  objectionable.  It 
creates  a  ministerial  officer,  without  legal  respon- 
sibilities, and  necessarily  commits  to  his  hands, 
high  interests  of  the  government,  and  to  some 
extent,  the  rights  and  reputation  of  individuals, 
to  be  treated  and  observed,  without  any  stronger 
guaranty  of  fidelity,  than  his  own  sense,  or  im- 
pressions, of  moral  obligation. 

The  general  regulations  for  the  army,  stigma-  improper  to 
tise,  as  being  highly  improper,  to  hold  charges 
against  an  officer  or  soldier,  in  order  that  they  ate' 
may  accumulate,  so  as  to  form  collectively  a 
crime  of  sufficient  magnitude  to  justify  a  prose- 
cution ;  and  declares  the  principle,  that  if  the 
facts,  as  they  arise,  are  not  of  a  kind  to  be  made 
matter  of  charge  at  the  time,  they  should  not  at 
a  future  period,  be  brought  up  or  revived.  This 
is  certainly  an  equitable  rule,  for  nothing  can  be 
more  adverse  to  good  order,  or  more  unbecoming 
in  conduct,  than  for  an  officer  to  store  away  in 


100  PRELIMINARIES    TO   TRIAL. 

CHAPTER     his  memory,  or  commit  to  the  keeping  of  a  black* 
YI'         book,  the  foibles  and  improprieties  of  a  brother 


officer,  or  of  an  enlisted  soldier,  to  be,  at  some 
future  time,  when  angry  or  inimical  passions 
excite  him,  arrayed  against  the  delinquent,  as 
breaches  of  discipline,  or  of  the  becoming  de- 
portment of  a  gentleman.  There  have  been 
cases  of  this  description,  which  have  broken  the 
harmony  which  ought  to  subsist  between  the 
members  of  the  military  community,  and  called 
forth  the  severest  animadversions  of  the  court, 
and  the  commanding  general.  It  is,  however,  of 
rare  occurrence,  and  in  every  instance  it  is  be- 
lieved, where  satisfactory  evidence  of  its  exist- 
,  ence  has  been  shown,  the  result  has  been  pain- 

ful and  humiliating  to  the  accuser. 
charges  to  be       Charges,  therefore,  should  always  be  founded 

founded  in  pub-  '  J 

lie  utility,  and  in  public  utility,  and  not  be  seized  as  a  means 

be  well  consid-  f  J  ' 

ered.  of  gratifying  personal  resentments ;  and  should 

likewise  be  well  considered,  in  relation  to  their 
character,  and  the  means  of  maintaining  them 
by  sufficient  evidence,  before  they  are  presented 
for  prosecution. 

^  *s  ^ne  ^utv  °^  a  court-martial,  after  being 
the  ^u^v  organized,  ana"  when  the  charges  are  read, 
to  judge  of  their  propriety,  not  only  as  to  the 
nature  of  them  with  reference  to  their  jurisdic- 
tion, but  also  as  to  the  precision  of  the  language 
used,  and  the  statement,  or  definition  of  the 
crime.  On  the  charge  being  read,  "  should  any 
doubt  arise,  whether  originating  with  the  mem- 
bers of  the  court,  or  with  the  parties  on  the  trial, 
with  regard  either  to  the  competency  of  the 
court's  jurisdiction,  or  the  relevancy  of  the 
charges,  these  doubts  must  now  be  discussed. 


PRELIMINARIES   TO   TRIAL.  101 

For,  should  there  appear  any  objection  to  the  CHAPTER 
legality  of  the  trial,  which  is  self-evident  and  in-  YI* 
surmountable,  such  as  the  prisoner  is  not  subject 
to  military  law,  or  that  the  crime  charged  is  a 
civil  offence,  the  court  ought  to  suspend  their 
proceedings,  and  to  submit  the  objection  to  the 
consideration  of  the  authority  by  whom  it  may 
have  been  assembled :  it  is  also  held  that  it  is  an 
undoubted  right,  and  even  the  duty  of  every 
court-martial  to  reject  any  illegal  or  erroneous 
charge."1 

And  so,  likewise,  if  the  charge  is  drawn  up  in  Prisoner  may 
a  loose  and  indefinite  manner,  though  it  may  not 
be  absolutely  repugnant  to  military  law,  may 
the  prisoner,  previous  to  pleading  to  the  arraign- 
ment, call  upon  the  prosecution  to  specify  the 
particular  facts,  of  which  he  intends  to  accuse 
him,  and  as  this  is  founded  in  material  justice 
no  court-martial  can  refuse  it. 

The  observation  of  this  procedure  is  impor- 
tant, and  will  often  prevent  the  laborious  and 
unprofitable  business  of  entering  into  the  inves- 
tigation of  very  inaccurate  or  improper  charges. 

The  judge  advocate  will,  upon  the  presenta-  The  judge  ad- 
tion  to  the  court  of  a  charge  deficient  in  accu-  moSme* y  ™ 
racy  or  perspicuity,  remonstrate  against  proceed-  charge!  a 
ing  to  trial  on  it;  and  all  doubts  which  may  arise, 
or  objections  which  may  be  made  to  a  charge, 
by  the  court,  the  judge  advocate,  or  the  prisoner, 
will,  with  the  proceedings  and  the  decision  of 
the   court  thereon,  be  regularly  and  fully  re- 
corded. 

Previous  to  the  arraignment  of  the  prisoner,  it  charges  may 
is  perfectly  competent  to  the  authority  ordering 

Kennedy  on  Courts  Martial. 


102  PRELIMINARIES    TO    TRIAL 

CHAPTER  .  the  court,  or  to  the  judge  advocate,  being  autho- 
YI*  rized  so  to  do,  to  alter  or  amend  the  charge  ;l 
but  after  the  prisoner  has  pleaded,  it  is  irregular, 
and  would  not  be  allowed  to  make  any  change 
except  in  case  of  a  plea  of  abatement,  for  a  mis- 
nomer or  wrong  addition.  In  such  case  the 
charge  can  be  amended  according  to  what  the 
prisoner  shall  declare  to  be  his  true  name  or  ad- 
dition ; — and  the  trial  will  proceed  as  if  no  such 
dilatory  plea  had  been  pleaded. 
Additional  No  additional  charge  can  be  entertained  by  a 

charges  not  to  be  .    ,  .  . 

entertained  af-   court-martial  against  a  prisoner,  subsequent  to 

ter  the  arraign-      ,  ,  ,      , 

ment.  the  swearing  of  the  court,  and  the  arraignment. 

This  would  seem  to  be  established  not  only 
upon  the  known  rule  of  law,  that  no  innovation 
shall  take  place  pending  the  original  issue,  but 
also  upon  the  terms  of  the  oath  administered  to. 
each  member.  "You  do  swear  that  you  will 
well  and  truly  try  and  determine,  according  to 
evidence,  the  matter  now  before  you" — The  pris- 
oner is  undoubtedly  amenable  for  acts,  uncon- 
nected with  the  matter  in  issue,  committed  either 
before  or  subsequent  to  the  arraignment ;  but  an 
offence  thus  questioned  must  be  presented  as  a 
separate  charge,  and  can  only  be  noticed  by  the 
court  under  special  authority,  when  the  trial 
will  be  distinct.  The  court,  in  order  to  try  it, 
must  first  pass  judgment  on  the  charges  to  which 
the  prisoner  has  pleaded,  and  then,  being  re- 
sworn,  proceed  without  reference  to  the  former 
trial,  as  in  ordinary  cases. 

Contempts  of        To  ensure  orderly  and  quiet  proceedings,  and 

court,  punished  .  J  .      A.         .  .       °         . 

irrespective  of  for  the  protection  and  vindication  01  the  dignity 

rank. 

•  »  See  Chap.  XV.,  entitled  "  of  the  Judge  Advocate,"  for  a  fuller 
statement  of  his  duties. 


PRELIMINARIES   TO   TRIAL.  103 

of  courts-martial,  the  seventy-sixth   article  of      CHAPTER 
war  provides,  that  "  no  person  whatsoever  shall         VI> 
use  any  menacing  words,  signs,  or  gestures,  in 
presence  of  a  court-martial,  or  shall  cause  any 
disorder  or  riot,  or  disturb  their  proceedings,  on 
the  penalty  of  being  punished  at  the  discretion 
of  the  said  court-martial." 

Contempts  which   may   thus  be  summarily  Party  commit 

.   .  *  *V.  ,  ting  a  contempt 

punished  by  a  court-martial,  are  such  as  are  w  permitted  to 

T   . i  ,  ,       appear  and  be 

committed  in  the  face  of  the  court,  and  of  a  pub-  heard. 
lie  and  self-evident  kind,  and  not  requiring  any 
interpretation  of  law,  nor  admitting  of  further 
investigation  to  determine.  In  cases  of  con- 
tempts, where  the  court  intend  to  proceed  di- 
rectly against  the  offender,  it  is  proper  and  just 
that  the  party  should  be  admitted  to  appear  and 
make  such  explanations  to  the  court,  as  he  may 
desire. 

There  can  be  no  doubt  but  that  courts-mar- 
tial, under  the  authority  of  the  above  quoted 
article,  are  fully  empowered  to  proceed  against 
military  persons.  It  has  been  the  practice  for 
centuries  in  Europe,  for  courts-martial  to  exer- 
cise a  summary  jurisdiction  in  contempts,  and 
to  extend  that  power  in  certain  circumstances 
far  beyond  the  mere  military  community.  And 
this  power,  in  relation  to  members  of  the  -army 
derives  no  intrinsic  value  or  vigor,  from  the  ac- 
cidental superiority  of  rank  of  the  members  of 
the  court,  to  that  of  the  person  offending,  but 
flows  from  an  inherent  right  for  the  due  admin- 
istration of  justice.  It  therefore  follows,  that  a 
court-martial,  whose  authority  is  the  direct  em- 
anation of  the  law,  claims  on  that  account  re- 
spect, and  not  from  the  accidental  rank  of  the 


104  PRELIMINARIES   TO   TRIAL. 

CKAPTEB  persons  employed;  and  all  military  persons, 
VI*  ._  without  regard  to  relative  rank  between  them- 
selves and  the  members  composing  the  court, 
must  observe  its  requirements  and  mandates, 
for  the  preservation  of  order,  and  the  fulfilment 
of  the  objects  for  which  it  has  been  assembled. 

A  case  falling  under  the  head  of  contempt, 
is  reported  by  Samuel  in  his  work  on  military 
law,  at  page  635.  Major  John  Browne  of  his 
majesty's  67th  regiment,  was  placed  in  arrest  for 
a  contempt  committed  in  the  face  of  a  court- 
martial,  held  at  Antigua  in  the  year  1786. 

Major  Browne  questioned  the  authority  of  the 
court  to  put  him  in  arrest,  being  composed  of 
members,  saving  the  president,  of  rank  inferior 
to  himself,  and  said  he  would  submit  to  the  ar- 
rest only  because  it  was  imposed  by  his  superior, 
Colonel  Foster,  the  president. 

The  observations  of  the  court  in  relation  to 
the  conduct  of  Major  Browne,  are  so  just  and 
forcible  as  to  make  them  of  value,  and  they  are 
therefore  transcribed. 

AH  courts-mar-       "  The  court  cannot  but  express  their  surprise 
"  that  a  doubt  should  have  been  entertained  on 


"  the  point,  (the  arrest,)  but  since  their  attention 
"  has  been  directly  called  to  it,  they  take  this 
"  opportunity  of  declaring  their  opinion,  that  all 
"  courts-martial,  legally  constituted  and  convened 
"  for  the  administration  of  justice,  have,  while 
"  acting  in  the  discharge  of  their  duty,  equal 
"  powers  and  authority  for  the  purpose  of  pre- 
11  serving  decency,  and  good  order,  repressing  con- 
11  tempts,  and  the  more  effectual  attainment  of 
"  truth,  whatever  may  be  the  rank  of  the  offi- 
"  cers,  which  constitute  those  courts  respective- 


PRELIMINARIES    TO   TRIAL.  105 

11  ty  ;   and  that  the  prosecution,  prisoner,  and     CHAPTER 

"  witnesses,  although  they  may  happen  to  be  of         V1' 

"  superior  rank  in  the  army  to  those  who  may 

:{  form  any  such  court-martial,  are  equally  bound 

"  to  observe  the  lawful  injunctions  of  the  court, 

"  as  if  the  same  had  been  altogether  composed 

"  of  officers  of  a  more  elevated  rank." 

The  principle  laid  down  so  clearly  in  the 
above  extract,  cannot  be  doubted,  and  upon  its 
observance  depends  the  utility  and  dignity  of 
military  courts. 

A  general  court-martial,  without  regard  to  the  Regimental  or 

i        f  '.  -i  •      xi        i   •    i        ^   •     j-    •    i  i       i      garrison  courts 

rank  of  its  members,  is  the  highest  judicial  body  martial  cannot 


known  to  the  military  state,  and  under  the  juris- 

diction  it  possesses  of  trying  all  offences  and  all  officer,  but  can 

,  .  .,.,  ,  .,  .  place  the  offend- 

persons,  subject  to  military  law,  it  may  in  cases  er  in  arrest. 
of  contempt  proceed  to  pass  judgment  upon  the 
offender.  But  a  regimental  or  garrison  court- 
martial  in  similar  cases  cannot  award  punish- 
ment against  a  commissioned  officer,  being  from 
its  constitution  excluded  from  taking  cognizance 
of  offences  by  such  persons.  Under  such  cir- 
cumstances, the  inferior  courts  would  only  have 
power  to  impose  an  arrest  on  an  officer,  what- 
ever might  be  his  rank,  —  and  report  the  same, 
with  the  cause  therefor,  to  the  proper  authority. 

It  has  been  stated  as  an  objection  against  the  summary  pro. 
summary  proceedings   of  a  court-martial  for  a  c^^aniai 
contempt  offered  to  it,  that  the  court  is  a  party  for  *'  atempts" 
as  well  as  the  judge,  which  characters  are  deem- 
ed incompatible  with  the  becoming  administra- 
tion of  justice.     But  when  it  is  considered  that 
the  offence  is  one  requiring  no  further  investiga- 
tion ;  and  that  a  reference  to  another  court-mar- 
tial of  the  charge  for  trial,  is  committing  the 

14 


106  PRELIMINARIES    TO    tf  RIAL. 

CHAPTER  subject  to  a  body  which  must  necessarily  feel 
VI'  the  same  interest  for  the  dignity  of  courts-mar- 
tial and  entertain  a  like  jealousy  for  the  con- 
tempt of  the  respect  due  them,  there  would  ap- 
pear to  be  no  sufficient  reason  or  advantage  for 
such  a  course.  On  the  contrary  the  delay  that 
would  ensue,  and  the  danger  of  witnesses  being 
absent  at  a  future  time,  and  the  loss  of  facts,  or 
sayings,  might  very  materially  endanger  the  ul- 
terior proceedings  or  judgment  of  the  court.  It 
is  therefore  better,  that  the  court  which  has 
been  insulted,  should  also  be  the  body  to  declare 
the  penalty. 
The  76th  Ar-  The  language  of  the  article  is  very  compre- 

ticle  of  War ;   .  ,    J 

not  applicable  hensivc,  and  embraces  all  persons  ichatsoever,  by 

to  non-military  .  .     .  .          ,  ,        -        ' 

persons.  its  terms ;  yet  it  is  a  question  how  far  the  legal 
authority  of  a  court-martial  extends,  to  punish 
contempts  offered  in  its  face,  by  persons  not  be- 
longing to  the  military  profession. 

The  distinctions  to  be  observed,  in  the  appli- 
cation of  the  power  of  punishment  by  courts- 
martial,  to  different  classes  of  persons,  are  not 
definitely  set  forth  in  the  military  acts,  or  the 
progress  of  opinion  concerning  the  respective 
rights  of  such  persons,  has  varied,  or  changed 
the  interpretation  of  the  law  from  what  it  was 
really  intended  to  be  at  the  time  of  its  enact- 
ment. In  the  broad  signification  of  the  language 
of  the  article,  that  the  word  whatsoever  evi- 
dently intended  to  subject  every  person  who 
might  offend  against  the  provisions  of  the  act,  to 
the  discretionary  action  of  a  court-martial,  can- 
not be  misunderstood;  and  yet,  when  it  is  re- 
membered, that  the  language  of  the  article  was 
borrowed  from  the  military  institutes  of  a  foreign 


PRELIMINARIES    TO   TRIAL.  107 

•nation,  in  which  the  sovereign,  one  branch  only     CHAPTER 
of  the  legislative  power,  was  authorised  to  make        VI' 
regulations,  or  "  articles  of  war,"  for  the  better 
government  of  the  military  forces,  it  would  seem 
that  the  law  is  not  binding  on  the  citizens  of  the 
country  generally,  or  on  any  others  than  those 
belonging  to  the  military  society. 

But  the  law,  as  it  exists  in  this  country,  does 
not  flow  from  any  delegated  or  inferior  authority, 
but  proceeds  directly  from  the  highest  source-of 
legislation — the  congress  of  the  United  States, 
and,  in  this  particular,  materially  differs  from  its 
prototype :  yet  the  object  of  this  law  was,  as  in 
England,  for  the  better  government  of  the  mili- 
tary establishment,  and  thence  comes  the  doubt 
as  to  the  competency  of  courts-martial  to  exert 
their  authority  to  arrest,  or  punish  persons  in 
civil  life.  The  breach  of  this  law  has  been,  and 
is  likely  to  be,  of  such  rare  occurrence,  that  the 
doubt  has  been  suffered  to  exist,  and  might  still 
be  permitted  to  exist,  without  much  anxiety  for 
its  solution;  though  the  importance  of  under- 
standing clearly,  the  power  which  a  court  of  jus- 
tice possesses,  to  protect  and  regulate  its  proceed- 
ings, makes  the  question  in  itself  one  of  great 
interest. 

It  has  been  justly  said,  that  "  laws,  without  a 
competent  authority  to  secure  their  administra- 
tion from  disobedience  and  contempt,  would  be 
vain  and  nugatory."1  And  such  is  the  lamenta- 
ble condition  of  military  laws,  where  the  author- 
ity to  cause  them  to  be  properly  observed  is  de- 
nied to  the  courts  appointed  to  administer  them. 

As  courts-martial  have  no  appointed  means 

i  4  Black.  Com.,  p.  285. 


108 


PRELIMINARIES    TO   TRIAL. 


CHAPTER 
V  . 


of  enforcing  their  mandates  against  persons  in 
civil  life,  supposing  the  power  to  make  such 
contempts  for  mandates  to  exist,  a  procedure  against  such 
would  be  nugatory  and  vain :  and  yet,  it  may  be 
asked,  shall  disturbances  of  the  proceedings  of 
courts-martial,  by  persons  not  belonging  to  the 
military  community,  be  permitted  to  pass  with 
impunity  1  Certainly  not.  In  such  cases,  where 
the  court  sits  within  the  limits  of  a  garrison,  or 
territory  subject  to  military  jurisdiction,  the  court 
can,  undoubtedly,  cause  the  offender  to  be  eject- 
ed from  its  presence  and  put  beyond  the  military 
limits.  And  when  a  court-martial  holds  its  ses- 
sions in  towns,  or  at  places  not  known  as  mili- 
tary posts,  such  persons  may  likewise  be  put  out 
of  the  presence  of  the  court ;  and  should  further 
disturbance  be  made  or  attempted  from  the  out- 
side of  the  court  room,  the  civil  authorities  may 
be  appealed  to,  to  proceed  against  the  offenders 
for  a  breach  of  the  peace. 

How  far  the  United  States  civil  courts  of  law 
could  exert  any  authority,  under  the  provisions 
of  the  article  of  war  cited,  to  interfere  for  the 
maintenance  of  order,  and  the  protection  of  the 
course  of  justice  in  military  courts,  upon  infor- 
mation laid  before  them,  is  not  considered ;  but 
such  procedure  would  seem  to  be  only  in  conso- 
nance with  reason,  and  the  principles  of  judicial 
propriety:  and  for  menaces  or  contemptuous 
conduct  before  a  court-martial,  the  civil  courts 
ought  to  be  authorised,  upon  due  application  for 
the  punishment  of  the  aggressor,  to  grant  an  at- 
tachment. 

In  order  to  promote  the  ends  of  justice,  and  to 
guard  against  prejudicing  the  public  mind  in  re- 


PRELIMINARIES   TO    TRIAL.  109 

lation  to  any  trial,  as  well  as  to  secure  an  honest     CHAPTER 
and  sincere  declaration  on  the  part  of  witnesses,        VI> 
who  might  be,  by  the  course  forbidden,  instructed  may^orCf  the 
in  the  detail  of  their  evidence,  courts-martial  may 
forbid  the  publication  of  its  proceedings  before 


the  termination  of  the  trial.  A  violation  of  this  tnaL 
order  of  the  court  would  be  a  contempt,  and 
liable  to  be  noticed  and  punished  as  any  other 
species  of  contempt  may  be.  This  right  of  the 
court  is  important  for  the  safety  of  the  prisoner, 
and  makes  very  apparent  how  needful  it  is  that 
courts  of  justice  should  be  clothed  therewith. 

Partial  .publications  tend  to  pervert  the  public 
understanding ;  and  though,  in  some  cases,  it  has 
happened  that  good  effects  have  been  derived 
therefrom,  yet,  as  the  rule  is  founded  upon  con- 
siderations of  general  justice,  such  accidenta* 
benefit  is  not  sufficient  to  counterbalance  the 
injury,  which  it  is  more  likely  to  produce. 

When  the  hour  is  arrived  for  assembling,  the  Order  of  assem- 
members  of  a  court-martial  take  their  places  at  ces  of' member* 
the  table  according  to  rank,  on  the  right  and  left 
of  the  president,  the  latter  at  the  head  of  the 
table.     The  judge  advocate  is  seated  opposite  to 
the  president.     The  prisoner  and  his  counsel 
have  a  place  assigned,  with  the  necessary  ac- 
commodation for  writing,  on  the  right  hand  of 
the  iudge  advocate.     The  witness  stands  near 

*J          O 

the  judge  advocate  on  his  left  hand. 

•F  O 

In  case  a  third  party,  as  prosecutor,1  should 
be  permitted  to  appear,  he  will  be  placed  to  the 
left  of  the  judge  advocate ;  and  the  interpreter, 

Though  such  a  person  is  not,  strictly,  authorised  to  appear  on 
military  trials,  yet  the  place  for  one  is  designated.  See  Chap- 
ter XV. 


110 


PRELIMINARIES    TO    TRIAL. 


CHAFFER     if  any,  will  occupy  a  place  to  the  right  of  the 
VI>         judge  advocate. 

The  following   diagram   will    illustrate    the 
above: — 

Members.  President  Members. 


11     9      7      5      3      1         ,-.        2      4      6      8      10    12 

oooooo    °    oooooo 


Super-  o 

numu- 

rmry. 


o  Super- 
nume- 
rary. 


o  O  o 

Witness.  Judge  Advocate.          Interpreter, 

o  Prosecutor.  Prisoner,  o 


°  Coun§el- 


Members  not  to       The  court  being  seated  and  called  to  order, 

leave  their 

place.  no  member  can  leave  his  place  without  the  per- 

mission of  the  president. 

The  names  of  the  officers  are  registered  ac- 
cording to  seniority,  and  the  regiment  or  corps 
of  each  is  annexed  to  his  name: — if  belonging 
to  the  staff,  the  rank  and  situation  are  stated. 

Copv of  charges       It  is  usual  for  the  judge  advocate  to  prepare  a 

on  the  table.  J 

copy  of  the  charges  for  the  use  of  the  court, 
which  is  placed  upon  the  table  previous  to  the 
arraignment. 

Propriety  of  the  In  reference  to  the  duty  of  the  court,  to  judge 
byathe8  court—  of  the  propriety  of  the  charges  submitted  for  in- 
to°cieTrenthed  vcstigation,  Captain  Simmons  is  of  opinion,  and 
states,  that  "  It  would  perhaps  conduce  to  regu- 
larity, and  might  occasionally  obviate  much  in- 
convenience, if  courts-martial  were  invariably 
cleared,  on  the  reading  of  the  charges  before  the 
arraignment  of  the  prisoner,  to  conside.  ite  rele- 
vancy."1 

1  Simmons  on  v^»r** 


PRELIMINARIES    TO    TRIAL.  Ill 

It  has  been  stated  in  a  preceding  page,1  that  CHAPTER 
it  is  the  duty  of  courts-martial  upon  being  duly  VI' 
organized,  and  when  the  charges  are  read,  to 
judge  of  their  propriety.  As  however,  upon  the 
reading  of  the  charges,  and  without  a  previous 
perusal  of  them,  no  objection  might  present  itself 
to  the  mind  of  any  person  connected  with  the 
court,  it  would  be  a  good  method  to  observe  the 
suggestion  above,  and  previous  to  the  arraign- 
ment, to  clear  the  court,  and  then  consider  the 
character  of  the  charge  submitted.  For  although 
the  prisoner  might  subsequently  plead  the  want 
of  relevancy,  or  perspicuity  in  the  charge,  still, 
as  the  court  is  the  judge  of  its  own  competency 
at  any  stage  of  its  proceedings,  and  is  bound  to 
notice  questions  of  jurisdiction  whenever  raised, 
the  mode  of  procedure  now  suggested,  could 
never,  in  any  instance,  militate  against  the  in- 
terests of  the  accused  ;  and  might,  in  some,  save 
much  useless  trouble  and  individual  respon- 
sibility. 

i  Page  100. 


CHAPTER  VII. 

P- 

OF  THE  TRIAL  AND  ITS  INCIDENTS. 

CHAPTER         A  COURT-MARTIAL  having  been  deemed  neces- 
VII>        sary  to  investigate  the  conduct  of  an  officer  or  sol- 
cou^touBem-  ^GT)  a»amst  whom  a  charge  has  been  preferred, 
We-  the  order  appointing  the  members  and  judge  ad- 

vocate to  compose  the  same,  as  well  as  the  time 
and  place  of  meeting,  is  duly  promulgated.  It 
becomes  then  the  duty  of  the  judge  advocate,  to 
provide,  under  the  authority  of  the  commanding 
officer  of  the  post  at  which  the  court  is  to  meet, 
or  through  the  intervention  of  an  officer  of  the 
quarter-master's  department,  or  by  his  own  au- 
thority, in  case  there  be  no  military  agent  present 
at  the  appointed  place  of  assembling,  a  proper 
apartment  for  the  accommodation  of  the  court. 
Guard  to  attend  If  necessary,  a  guard  is  furnished,  or  posted 
deriies."  over  the  court,  and  receives  orders  from  the  judge 
advocate.  The  requisite  number  of  orderlies  in 
waiting  are  detailed,  and  previously  placed  under 
the  control  of  that  officer  for  summoning  wit- 
nesses, notifying  members  of  the  hour  of  meeting, 
and  giving  such  attendance  as  may  be  required. 
The  members  of  the  court  being  assembled, 
take  their  respective  places  according  to  rank ; 
and  any  preliminary  matter  which  may  have  re- 
quired their  attention  being  disposed  of,  the  court 
is  proclaimed  open.  The  parties  are  then  called 
and  appear  in  court. 


OF   THE   TRIAL    AND    ITS    INCIDENTS.  113 

The  prisoner  is  sometimes  attended  by  a  com-  CHAPTER 

missioned  officer,  or  by  a  guard,  according  as  his  vn' 
rank,  or  the  nature  of  the  charges  may  require.1 

The  prisoner,  unless  there  be  danger  of  escape  Prisoner  to  be 

...  f  ..  -.    f         free  from  fetters. 

or  rescue,  must  appear  without  fetters,  and  free 
from  shackles  of  any  kind  :  indeed,  after  having 
pleaded,  he  has  a  right  to  demand,  that  during 
the  trial  he  may  be  without  irons  or  bonds. 

The  court  has  no  control  over  the  prisoner,  court  no  «m- 

,       .  ,         .  -  ,  .  .  trol  over  prw- 

except  during  the  time  of  his  presence  in  court  ;  oners,  except  in 
and  when  the  court  adjourns,  the  prisoner  is  re- 
mitted to  the  hands  of  the  guard,  and  the  autho- 
rity of  the  commanding  officer,  resumes  the  entire 
direction  or  superintendence. 

The  prisoner  should  be  allowed  a  chair,  and  Prisoner  allow 

ed  a  chair. 

Sir  C.  J.  Napier  thus  reasonably  and  humanely 
suggests  the  propriety  of  such  a  rule.  "  Why," 
says  he,  "  should  a  man  be  kept  on  his  legs  from 
eight  o'clock  in  the  morning  till  four  in  the  after- 
noon ?  This  is  hard  upon  him,  (the  prisoner,) 
under  such  unfortunate  circumstances,  even  if  he 
be  strong  ;  if  he  be  a  weak  and  agitated  man,  as 
many  are,  it  is  cruel." 

The  names  of  the  members  are  then  called  Names  of  mem. 

*  ,.  .  bers  called. 

over  by  the  judge  advocate,  according  to  seniority, 
and  they  take  their,  places,  as  has  been  indicated 
already,  on  the  right  and  left  of  'the  president, 
alternately,  according  to  rank. 

It  is  not  necessary,  although  such  form  has 


been  observed  very  frequently,  to  call  the  witnes- 
ses into  court,  previous  to  the  arraignment.  The 
only  object  to  be  obtained  thereby,  was,  to  give 
the  prisoner  an  opportunity  of  knowing  whether 

1  At  trials  before  naval  courts  martial  there  is  a  suitable  person 
detailed  to  act  as  provost  marshal. 

15 


CHAPTER 
VII. 

Order  for  as- 
sembling, and 
charges  read. 


- 

114  OP   THE    TRIAL    AND    ITS    INCIDENTS. 

those  who  had  been  summoned,  or  whom  he  had 
requested  might  be  summoned,  were  present. 

The  judge  advocate  now  reads  the  order  for 
the  assembling  of  the  court ;  and  when  he  is  ap- 
pointed by  a  special  warrant,  which  is  the  cus- 
tom at  present  in  naval  courts-martial,  the  war- 
rant is  likewise  read.  There  seems  to  be  a  pro- 
priety, and  it  has  been  recommended  to  be  ob- 
served, that  at  this  stage  of  the  proceedings,  the 
charges  to  be  investigated  should  also  be  read, 
inasmuch  as  it  formally  brings  before  the  court 
the  matter,  which  they  are  about  to  swrear  that 
they  will  "  truly  try  and  determine." 

This  has  not  been  the  custom  with  courts- 
martial  in  the  service  of  the  United  States ;  but 
when  the  language  of  the  oath,  required  to  be 
taken  by  all  the  members,  is  referred  to,  it  seems 
necessary  that  the  matter  for  trial  should  be  laid 
before  them,  antecedent  to  the  swearing  of  the 
court. 

commissioned        It  was  formerly  the  custom,  and  is  still  ad- 
tried  addressed  hered  to  by  some  courts,  to  address  the  accused 

by  their  proper  ,         -  lf      .     '        _  _•  , 

rank  and  name,  person  by  the  appellation  of  prisoner ;  but  such 
custom,  it  is  thought,  had  better  be  laid  aside. 
The  usual  mode  at  present,  and  one  which  is 
certainly  more  delicate  and  courteous,  especially 
in  the  case  of  a  commissioned  officer,  is  to  ad- 
dress him  by  his  proper  rank  and  name. 

The  order  for  convening  the  court  having 
been  read,  the  judge  advocate  asks  the  prisoner 
if  he  has  any  objection  to  any  member  present, 
named  in  the  order,  or  any  cause  of  challenge  to 
present. 

Peremptory  challenge  or  challenges,  a*?  not 

1  Simmons  on  Courts  Martial,  p.  157. 


Prisoner  asked 
if  he  has  objec- 
tions to  any 
member. 


%OF   THE    TRIAL    AND    ITS    INCIDENTS.  115 

permitted,  but  the  prisoner  must  assign  his  rea-     CHAPTER 
sons  in  writing,  or  if  brief,  the  judge  advocate        vn* 
will  record  them  as  stated. 


In  case  a  member  should  be  challenged,  (and  aUowed- 

o       '  \  Challenge  to 

only  one  can  be  challenged  at  a  time,)1  the  rea-  member  and  re- 

*      -  -  ...  ply  to  be  record- 

SOnS  therefor,  and  when  susceptible  of  such,  the  ed. 

reply  or  explanation  offered,  are  committed  to 
writing  as  a  part  of  the  minutes  of  the  court, 
and  make  a  portion  of  the  proceedings;  and  the 
court  is  cleared  in  order  to  deliberate  and  decide 
on  the  objection  assigned. 

The  member  objected  against,  always  with-  The  member 
draws  during  the  discussion  which. follows,  and  withdraws. 
of  course,  does  not  vote  on  the  question.     Upon 
the  re-opening  of  the  court,  the  judge  advocate, 
(by  direction  of  the  court,)  makes  known  the 
decision,  and  the  challenged  member  resumes 
his  seat,  or  withdraws  altogether,  as  the  case 
may  be,  and  a  member  in  waiting,  or  supernu- 
merary, if  any  be  detailed,  supplies  his  place. 

Courts-martial  generally,  in  cases  where  the  courts  martial 

i-T  •  J    A   •  j.    i-       J         not  so  "Sid  ** 

public  service  may  not  receive  detriment  by  de-  to  cause  being 
lay,  or  when  there  is  a  sufficient  number  to  pro-  common  iawm 
ceed  with  the  trial,  are  not  very  exact  or  critical 
in  the  consideration  of  the  objections  made  to 
a  member  by  the  prisoner.  It  is  supposed  that 
even  in  cases  where  the  prisoner  labors  under  a 
misapprehension  in  regard  to  the  facts  objected 
to  in  the  member,  there  should  be  the  most  libe- 
ral indulgence  conceded  that  views  of  public 
duty  would  justify — and  this  not  only  in  a  spirit 
of  sympathy  for  the  painful  condition  of  an  ac- 
cused person,  but  also  from  the  consideration, 
that  in  the  breast  of  a  challenged  member,  al- 

1  71st  Article  of  War. 


•  • 

116  OF    THE   TRIAL    AND    ITS    INCIDENTS. 

tfP 

CHAPTER     though  the  assigned   causes   may  be   founded 

-  —  -  merely  in  suspicion,  there  might  possibly  be  in- 

spired,  to   some    extent,   the    very  prejudices, 

against  the  operation  of  which  the  prisoner  was 

so  solicitous  to  be  protected. 

caution  as  to  But  courts-martial  will,  however,  in  the  ex- 
ercise of  such  a  discretion,  be  careful  that  such 
a  disposition  on  their  part,  be  not  taken  advan- 
tage of  by  a  perverse  or  unreasonable  person  ; 
and  the  cause  of  challenge  assigned  by  a  pris- 
oner will  always  be  stated  in  becoming  and 
respectful  terms. 
judge  advocate  The  judge  advocate  cannot  be  challenged  on 

cannot  be  chal-  ,  ',  ,  ... 

any  pretence  whatever  :  he  is  merely  a  ministe- 


rial officer  of  the  court,  and  exercises  no  judicial 
capacity  whereby  a  cause  of  challenge  could  be 
preferred. 

courts  martial  Although  the  law  for  the  government  of  courts- 
martial  requires  each  member  to  take  a  prescrib- 
ed  oath,  as  a  necessary  qualification  for  the  ex- 
ercise of  judicial  authority,  still,  a  court-martial 
when  assembled,  if  the  competent  number  be 
present,  possesses,  previous  to  being  sworn,  a 
deliberative  capacity,  and  is  competent  to  decide 
on  the  propriety,  or  validity  of  .any  exception 
made  to  a  member. 

challenges  dc-       When  challenges  are  made  to  a  member,  or 
ciaratioynsoefthe  members,  courts-martial  decide  on  the  declara- 


tions  of  the  challenger,  and  challenged  officer, 
n£uy  Ed"   and  of  the  witnesses  adduced  ;  —  for  there  is  no 

common  law  ,»        .,        «         .••  •  •  j 

courts.  authority  for  the  court  to  receive  evidence  on 

oath,  previous  to  the  administration  of  the  one 
prescribed  for  the  members.  In  this  respect  it 
differs  from  the  procedure  of  the  civil  courts, 
where  tryers  are  sworn,  not  of  the  jury,  to  de- 


OP    THE    TRIAL    AND    ITS    INCIDENTS.  117 

termine  whether  the  juryman  challenged  will     CHAPTER 
try  the  prisoner  indifferently. 


Challenges  are  of  various  causes,  and  are  di-  Various  causes 

of  challenge. 

vided  by  lawyers  into  four  kinds.  They  are  not 
all  such  as  are  usually  applicable  to  military 
courts.  Those  which  most  usually  arise  for  the 
consideration  of  courts-martial  fall  under  the 
third  head,  as  propter  ajfectum,  though  it  might 
happen  that  challenges  might  arise  under  some 
of  the  other  heads.  Challenge  for  suspicion  of 
bias  or  partiality  is  the  most  frequent :  this  may 
either  be  a  principal  challenge,  or  to  the  favor. 
"  A  principal  challenge  is  such,  where  the  cause  A  principal 

,  .,,       .,  .  /.      .  .  ,  challenge. 

assigned  carries  with  it,  pnma  facie,  evident 
marks  of  suspicion,  either  of  malice  or  favour ; 
as  that  a  juror  is  of  kin  to  either  party  within 
the  ninth  degree ;  that  he  has  an  interest  in  the 
cause ;  that  there  is  an  action  depending  be- 
tween him  and  the  party ;  that  he  has  taken 
money  for  his  verdict ;  that  he  has  formerly 
been  a  juror  in  the  same  cause ;  that  he  is  the 
party's  master,  servant,  counsellor,  steward,  or 
attorney,  or  of  the  same  society  or  corporation 
with  him.  All  these  are  principal  causes  of 
challenge,  which,  if  true,  cannot  be  overruled ; 
for  jurors  must  be  omni  exceptione  majores. 
Challenges  to  the  favour,  are  when  the  party  challenges  to 
hath  no  principal  challenge,  but  objects  only  te^XiTthJfor" 
some  probable  circunstances  of  suspicion,  as  ac-  pS^ner?  com 
quaintance  and  the  like."1 

It  is  a  good  ground  of  challenge  that  a  juror 
has  a  claim  to  the  forfeiture  which  shall  be 
caused  by  the  party's  conviction.  Now  it  is 
the  case  that  upon  conviction  of  an  officer  he 

3  Black.  Com.,  362. 


,* 

118  OP   THE    TRIAL    AND    ITS    INCIDENTS. 

CHAPTER     may,  by  the  sentence,  incur  a  forfeiture  of  his 
commission,  which  the  next  in  rank  or  succes- 


sion to  him  may  be  said  to  have  a  claim  to ;  but 
whether  this  should  be  admitted  as  a  cause  of 
exception  to  a  member  has  not  been  decided.  I 
am  inclined  to  the  opinion,  however,  that  in 
every  case  where  such  fact  is  objected  to  by  the 
prisoner,  the  member  challenged  should  with- 
draw. 
Peremptory  In  reference  to  this  part  of  the  subject,  it 

challenges  not  .  .        * 

allowed-  frivo-  must  be  borne  in  mind,  that  peremptory  chal- 

lous  causes  not  *         J 

top  readily  ad-  lenges  are  not  allowed  by  courts-martial,  because 
the  interests  and  circumstances  of  the  military 
service  will  not  at  all  times  permit  an  equal  fa- 
cility of  replacing  a  member,  as  exists  in  the 
case  of  a  challenged  juror  in  the  civil  courts. 
And  therefore  it  is  incumbent  upon  courts-mar- 
tial, to  see  that  frivolous  causes  of  challenge  are 
not  too  readily  admitted. 

Right  to  chai-       The  right  of  challenge  to  the  parties  is  recip- 

lenge  is  recipro-  ,    .      .  i  •   i       i 

cai  to  the  par-  rocal,  and  it  is  one  which  the  judge  advocate, 

in  particular  circumstances  ought  to  exercise. 
Member  object-       in  general,  a  member  objected  to  upon  the 
udice  asks  leave  ground  of  prejudice  or   malice,  asks  leave  to 

to  withdraw.  ' 

withdraw,  which  the  court  ordinarily  feels  dis- 
posed to  comply  with,  though  it  is  maintained 
by  some  writers  that  they  ought  to  be  assured 
of  the  sufficiency  of  the  cause  of  challenge. 
The  causes  of  such  description  of  challenge  are 
of  a  more  delicate  nature  than  others,  and  offi- 
cers preferring  them  must  always  experience 
the  difficulty  and  inconvenience  of  being  denied 
the  right  of  peremptory  challenge. 

Major  Van  Kennedy1  very  justly  observes,  that 

'Page  21. 


OP   THE    TRIAL    AND    ITS    INCIDENTS.  IIS 

"  courts-martial  therefore,  when  such  a  cause  is  CHAPTER 
hinted,  prefer  rather  to  deviate  from  the  strict  VII> 
line  of  their  duty  than  to  enter  into  any  discus- 
sion which  might  be  productive  of  disagreeable 
co'nsequence.  They  accordingly  refrain  from 
all  inquiry  into  the  particular  circumstances 
whence  this  suspicion  may  have  arisen,  and  per- 
mit the  member  challenged  to  withdraw.  But 
should  the  court  deem  it  expedient,  or  the  pub- 
lic service  render  it  necessary  that  these  circum- 
stances should  be  taken  into  deliberation,  the  de- 
cision on  their  relevancy  or  validity  must  depend 
entirely  on  the  good  sense  and  sound  judgment 
of  the  members  of  the  court." 

It  is  a  good  ground  of  challenge  to  a  member,  or  interest  m 
(should  such  by  inadvertence  happen  to  be  the  iSa^ 
case,)  that  he  is  interested  in  the  result,  or  has 
been  injured  by  the  prisoner,  for  which  act  he 
is  brought  to  trial.     A  sentence  of  a  cpurt-mar- 
tial  was  remitted,  from  the  circumstance  of  an 
officer  being  a  member,  whose  property  the  pris- 
oner had  attempted  to  steal.1 

Having  been  a  member  of  a  regimental  court-  Having  been  a 

.    i     T.  i          -,       .    .  ,,        -i  .    i  i    member  of   a 

martial,  from  the  decision  of  which  an  appeal  court  whose  de- 

i          ,  ,  ,  ,.    ,    .  ..     cision  is  appeal- 

has  been  made  to  a  general  court-martial,  is  suf-  ed,agoodchai- 

ficient  cause  of  exception  to  a  member. 

An  officer  having  been  a  member  of  a  court  Having  been  a 

.  .  member  of  court 

of  inquiry  held  to  investigate  the  subject  of  the  °f  inquiry  to  m- 

.       .  .  .  vestigate  the 

charge,  is  ineligible  to  sit  as  a  member  of  the  same  subject. 

incapacitates. 

court-martial. 

It  is  held  by  some  writers  on  English  military  The  objection. 

.  ,  .  -     for  excluding 

law,  that  such  person  can  sit  as  a  member  of   members  of 
the  court,  to  try  the  charge,  provided  no  opinion 
on  the  merits  of  the  case  had  been  expressed 

1  Simmons,  p.  164. 


120 


OP   THE    TRIAL    AND    ITS    INCIDENTS. 


CHAPTER  by  the  court  of  inquiry.  But  this  rule  is  en- 
Yn>  tirely  rejected  in  the  service  of  the  United 
States,  and  is  founded  upon  substantial  reasons. 
A  court  of  inquiry  is  assimilated  to,  and  held  in 
many  respects,  in  the  light  of  a  grand  jury,  and 
a  member  is  not  supposed  to  be  able  to 
come  to  the  trial,  with  a  mind  perfectly  free  and 
unbiassed.  Although  no  opinion  has  been  given, 
still  as  there  has  been  of  necessity  a  considera- 
tion of  the  facts  in  controversy,  and  it  may 
sometimes  be,  that  the  statements  made  before 
a  court  of  inquiry  are  entirely  exparte,  it  cannot 
be  otherwise  than  that  the  members  of  such 
courts  do  mentally  form  an  opinion,  upon  the 
conduct  of  the  accused.  It  would  therefore  be 
quite  incompatible  with  a  fair  trial,  that  a  mem- 
ber who  had  been  thus  exposed  to  the  impres- 
sions that  a  previous  examination  may  have 
made,  should  retain  a  seat  during  the  trial  of  the 
prisoner. 

Major  Haugh's  Major  Hough  is  of  opinion  that  a  distinction 
tinguish  cases,  should  be  made  in  certain  kinds  of  offences  j1 
ucb  view.  but  it  is  apprehended  that  if  courts-martial  were 
permitted  to  distinguish  cases  in  this  way,  they 
might  at  times  overstep  the  strict  limits  of  pro- 
priety. The  question  involves  a  clear  principle 
of  right  of  the  parties  before  the  court,  and  as 
such,  is  of  more  importance  than  the  considera- 
tion of  convenience.  The  practice  therefore  is 
decided,  and  an  officer  who  has  acted  as  mem- 
ber of  a  court  of  inquiry,  cannot  sit  on  the  court 
martial  at  the  trial. 

How  far  an  exception  taken  to  a  member,  on 
the  ground  that  he  was  a  member  of  another 

1  Military  Law  Authorities,  pp.  44,  45. 


OF   THE    TRIAL    AND    ITS    INCIDENTS. 


121 


court  in  which  the  same  matters  happened  to  be     CHAPTER 
material,  though  not  -directly  in  issue,  and  held        VIL 


either  for  the  same  cause,  or  upon  the.  trial  of  Jlu 
another  action,  might  be  considered  valid,  must 
depend  upon  the  circumstances  under  which  co 
they  arise.  There  is  a  diversity  of  opinion 
whether  a  challenge  can  be  maintained,  for  hav-  ed- 
ing  been  a  member  of  a  court  of  inquiry,  or 
court-martial  in  which  the  circumstances  about 
to  be  investigated  have  been  discussed,  either 
principally,  collaterally,  or  incidentally.  The 
reason  for  supposing  such  cause  of  exception 
against  a  member  sufficient  is,  that  there  is  a 
possibility  that  there  may  be  a  premature  opin- 
ion from  incomplete  evidence  ;  while  a  contrary 
opinion  is  supported  on  the  ground  that  no  anal- 
ogy in  the  custom  of  common  law  courts  can  be 
shown  to  support  such  position.  "  It  hath  been 
adjudged  to  be  no  good  cause  of  challenge,  that 
the  juror  hath-  found  others  guilty  on  the  same 
indictment  ;  for  the  indictment  is  in  the  judg- 
ment of  the  law,  several  against  each  defendant, 
for  every  one  must  be  convicted  by  particular 
evidence  against  himself."1  And  it  is  a  well 
known  custom,  for  courts-martial  composed  of 
the  same  officers,  to  investigate  charges,  not  only 
collateral,  but  arising  out  of  the  same  facts,  or 
identical. 

How  the  investigation  of  circumstances  at- 
tending facts,  which  may  be  subsequently  made 
the  subject  of  examination  on  another  trial,  can 
prejudice  the  minds  of  the  jurors,  inasmuch  as 
they  are  not  applied  to  the  person  to  be  after- 
wards tried,  the  writer  cannot  readily  perceive. 

»  i  2  Hawk.,  589. 

16 


wit  on 


122 


OF    THE    TRIAL   AND    ITS    INCIDENTS. 


CHAPTER  The  existence  and  description  of  certain  acts 
vn*  have  a  definite  character  without  reference  to 
the  actor,  and  a  knowledge  of  these  can  hardly 
tend  to  a  forejudgment  of  any  person,  before  they 
are  directly  charged,  and  made  applicable  as  the 
measure  of  criminality,  by  specific  and  positive 
Not  admissible,  evidence.  Unless,  therefore,  there  be  something 
peculiar  in  the  investigation  previously  had,  and 
by  which  a  question  of  the  prisoner's  guilt  may 
have  been  agitated,  such  objection  against  a 
member  of  a  court-martial  could  not  be  sus- 
tained. 

Not  to  be  con-      And  it  must  not  be  supposed  that  there  is  any- 
founded  with          .  n .  .11  i  i 
the  objections    thing  contradictory  in  the  last  paragraph,  to  what 

against  mem-  .  ••  .  i 

bers  of  courts   has  been  said  in  another  page  in  relation  to  mem- 

ofinquiry.  <•  •          •  T       *1 

bers  of  a  court  of  inquiry.  In  the  case  of  a 
court  of  inquiry,  the  matter  is  directly  applied 
to  the  person  impugned,  and  not  considered  in 
an  inferential,  or  collateral  light,  and  conse- 
quently must  exert  a  corresponding  influence 
upon  the  judgment.  But  in  the  other  circum- 
stances of  considering  facts,  it  is  but  an  accident 
which  brings  them  to  view ;  and  though  made 
the  subject  of  discussion,  still  they  are  but  se- 
condary in  their  nature,  and  are  never  directly 
;  considered  as  acts  of  guilt  of  a  third  person. 
Commanding  it  is  not  always  considered  a  good  ground  of 

officer  of  pris-  J 

oner,  not  ai-     challenge  to  a  member,  that  he  is  the  command- 
ways  a  sum-  °  ' 
dent  canse  of  mg  officer  of  the  prisoner's  regiment.     It  is  an 

challenge ;  such         °  r 

relation  be-       undoubted  fact,  however,  that  as  a  rule,  the  ap- 

tween  member  .  /Y* 

and  prisoner     pointing  a  commanding  officer,  a  member  of  a 

Avoided.  court-martial  is  bad,  and  should,  if  possible,  be 

avoided.    Especially  in  cases  where  the  prisoner 

is  serving  with  the  commander  of  the  regiment 

to  which  he  belongs,  is  it  probable,  that  some 


OP   THE   TRIAL    AND    ITS    INCIDENTS.  123 

prejudice  may  exist  from  previous,  or  imperfect,     CHAPTER 
or  ex  parte  knowledge  of  the  circumstances  indu-        V1I'_ 
cing  the  trial.     This,  of  course,  applies  to  com- 
manding officers  of  every  description ;  that  is,  of 
posts,  and  detachments,  as  well  as  of  regiments. 

There  is  no  prohibition  by  law,  or  regulation, 
to  the  appointment  of  any  particular  officer  as 
member  of  a  court-martial,  and  it  happens  there- 
fore, at  times,  that  officers  bearing  an  objection- 
able official  relation  to  the  prisoner,  are  named 
for  such  duty. 

Having  declared  an  opinion  unfavorable  to  the  Declaration  of 

..   .         7        .  i  />      i     i      opinion  unfa- 

prisoner,  maliciously,  is  a  good  cause  of  chal-  vorabie  to  Pris- 
lenge.     This  rule  of  law  is  extended  very  much,  caule  of  chii- 
and  the  mere  expression  of  opinion,  relative  to 
the  subject  of  investigation,  is  held  to  be  suffi- 
cient. 

It  is  a  valid  cause  of  challenge  that  a  member  it  is  a  good 
is  a  material  witness,  and  has  been  summoned  a  nJmiSr  isaa 
on  the  trial.     If  a  member  is  merely  required  to  Sew!"* 
speak  as  to  character,  the  objection  is  not  ad- 
mitted.    There  appear  to  be  good  reasons  for 
this  rule — and  should  a  member,  not  having 
been  challenged,  after  having  been  duly  sworn, 
be  unexpectedly  called  upon  as  a  material  wit- 
ness in  the  case,  he  is  not  thereby  disqualified 
from  discharging  his  duty  as  a  member  of  the 
court,  though   it   might  prove  better  that  the 
character  of  judge  and  witness  were  not  united. 
In  a  case  like  this,  where  the  member  is  called  when  a  mem- 

,       ,.,,  j    ,,  ...  berisunexpect- 

upon  to  testify,  and  the  examination,  or  cross-  ediy  called  up- 

..,.,,  on  to  testify  to 

examination  is  of  such  a  character,  as  to  exas-  the  matters  in 

,  .      .,  .1         c.     •,.  ,,   .-,  ..  .,    issue,  he  ought 

perate,  or  irritate  the  feelings  of  the  witness,  it  to  be  permitted 
is  advisable  that  the  member  should  not  resume 
his  seat ;  and  if  the  number  present  be  sufficient 


124  OP    THE    TRIAL    AND    ITS    INCIDENTS. 

CHAPTER     to  continue  the  proceedings,  the  court  may  au- 

— thorize,  (and  he  may  desire  it,)  his  withdrawal. 

In  fact,  it  is  a  safer  rule,  that  in  every  case,  in 
which  a  member  happens  to  be  examined  as  a 
material  witness,  he  should  be  withdrawn  from 
the  court ;  for  it  is  certain,  that  the  facts  to  which 
he  deposes,  must,  to  some  extent,  be  an  expres- 
sion of  his  opinion  of  the  matter  in  issue. 
Member  of  the  The  objection  to  a  member,  on  the  ground 

same    company  .  ° 

or  regiment  not  that  he  is  a  member  of  the  same  regiment  or 

a  cause  of  chal-  •  i         i  •  i      • 

lenge,  company  with  the  prisoner,  is  inadmissible; 

though  there  are  circumstances  of  official  rela- 
.  tion  between  a  prisoner  and  his  captain,  or  com- 
manding officer  of  the  company,  which  might 
authorize  such  cause  of  exception  to  be  enter- 
tained. 

Challenge  to          It  was  formerly  maintained  in  the  common 

member  after  •> 

being  sworn  in.  law  courts,  and  such  doctrine  was  stated  and  ad- 
vocated by  some  military  writers,  that  "  no  juror 
can  be  challenged  by  either  party,  without  con- 
sent, after  he  hath  been  sworn,  whether  on  the 
same  day,  or  on  a  former ;  unless  it  be  for  some 
cause  that  happened  since  he  was  sworn." 

But  this  rule,  however,  has  been  superseded 
by  a  more  humane  and  reasonable  practice,  and 
what  appears  to  be  in  strict  conformity  with  the 
requirements  of  justice ;  for,  as  Mr.  Tytler  ob- 
serves :l  "  there  is  no  reason  of  justice,  or  of  com- 
mon sense,  that  should  preclude  a  prisoner  from 
challenging,  on  sufficient  cause,  any  of  the  mem- 
bers after  the  court  is  sworn  ;  provided,  he  had 
no  opportunity  of  moving  his  objection  before  that 
form  was  gone  through.  An  objection  cannot  be 

i  Page  231. 


OP    THE    TRIAL    AND    ITS    INCIDENTS.  125 

said  to  be  waived,  which  the  objector  had  no     CHAPTER 
power  of  urging."  vn* 


Courts-martial  will  accordingly  admit  excep-  ^^^  8?ch  «• 

0  J  •       cepUonis  suflfi- 

tions  taken  to  a  member,  for  good  and  sufficient  cient- 
cause,  discovered  after  the  member  has  been 
sworn.     But  if  a  cause  of  challenge,  known  to 
the  prisoner  prior  to  his  arraignment,  has  been 
waived  by  him,  it  cannot  subsequently  be  urged. 

Challenges  to  the  array,  are  at  once  an  excep-  challenges  to 

i       i     i      the  array. 

tion  to  the  whole  panel  or  court ;  but  such  chal- 
lenge is  seldom  offered,  though  it  may  arise 
from  a  want  of  competency,  or  jurisdiction  of 
the  court  to  proceed  with  the  trial. 

The  proper  time  for  making  a  challenge  to  a  Time  for  ma- 
member,  is  after  the  warrant  for  holding  the  lenfe* e 
court  has  been  read,  and  previous  to  the  arraign- 
ment.    The  prisoner  first  states  his  objections, 
if  any,  to  the  member,  or  members ;  and  after 
him,  the  prosecutor  may  do  the  same. 

It  has  been  stated  by  a  military  author,  (see  opinion  that  ail 

.     .  *-~,.      /->i     T    TkT       •  i  r~i  challenges 

the  opinion  of  oir  C.  J.  Napier,  quoted  by  Cap-  should  be  ad- 
tain  Hughes,  in  his  work  on  the  duty  of  judge 
advocates,  at  page  41,)  that  "  when  it  is  practi- 
cable so  to  do,  all  challenges  sliould  be  admitted. 
It  is  not  only  right  to  be  as  mild  as  possible  to- 
wards a  prisoner,  but  it  is  right  to  let  the  public 
and  the  prisoner  see  that  such  is  the  case ;  be- 
sides no  officer  who  has  been  challenged  likes  to 
sit  as  a  member  of  a  court,  and  it  is  hard  to 
oblige  him  so  to  do,  unless  the  good  of  the  ser- 
'  vice  demands  it." 

The  above  quotation  embodies  a  good  rule, 
where  it  is  possible,  consistent  with  the  public 
interests,  to  observe  it.  In  fact,  as  courts-mar- 
tial are  not  strictly  bound  to  the  observance  of 


126  OF   THE    TRIAL    AND    ITS    INCIDENTS. 

CHAPTER     proof  of  the  cause  of  challenge,  such  questions 
VII>        must  be  left  for  determination  to  the  sense  of 
propriety,  or  sound  judgment,  of  the  court  them- 
selves. 

wto"ch?the°Buf-       ^ie  principle?  then,  by  which  the  sufficiency 
cuuaof  chai-    °^  a^  challenges  is  determined,  is  simply  this, 
mined "  *****'  v^z  :  ^^  ^e  member  or  juror  be  perfectly  in- 
different ;  and  without  attempting  to  determine 
the  causes  or  circumstances  which  may  be  ad- 
mitted to  establish  an  exception  made  to  a  mem- 
ber, it  is  enough  to  remark,  that  in  every  in- 
stance which  may  arise,  without  recurring  to  par- 
ticular rules  laid  down  by  any  writer,  the  good 
sense  of  the  court  will  always  enable  them  to 
determine,  whether  there  is  probable  ground  for 
the  belief,  that  any  partial  or  prejudiced  feeling 
exists  in  the  breast  of  the  challenged  member. 
challenges  Now,  although  courts-martial  are  extremely 

not  always  • 

mattiA"  a    indulgent  towards  a  prisoner,  in  regard  to  this 
course,  for  any  subject,  and  are  generally  disposed  to  allow  a 

cause.  •*  * 

challenged  member  to  withdraw,  without  sub- 
jecting the  question  to  the  ordeal  of  proof,  still, 
it  does  not  follow  that  a  challenge  is,  of  course, 
upon  the  assignment  of  any  cause,  to  be  admit- 
ted. While  considerations  of  consequences, 
which  may  grow  out  of  the  future  official  inter- 
course, and  relations  of  the  challenger  and  the 
challenged  party,  have  a  due  influence  upon  the 
minds  of  the  court  to  induce  a  liberal  rule,  yet 
there  are  emergencies  of  the  public  service 
which  demand  a  paramount  observance,  and  by 
which,  for  the  public  interests,  a  court-martial 
will  be  guided. 

of  chai-      The  cause  of  challenge  must,  as  has  been 
heretofore  noticed,  be  always  presented  in,  or  re- 


OP    THE    TRIAL    AND    ITS    INCIDENTS.  127 

duced  to  writing  by  the  judge  advocate,  and  is     CHAPTER 
minuted  as  a  part  of  the  proceedings  of  the  court.        V1I> 
This  rule  tends  very  much  to  repress  frivolous 
objections,  founded  frequently  in  the  mere  ap- 
prehensions or  suspicions  of  the  prisoner. 

There  is  good  ground  for  a  court-martial  to  Reasons  why 
allow  a  challenge,  though  not  supported  by  any 
proof,  which  does  not  exist  for  a  like  procedure 
in  the  courts  of  common  law.  The  members  of 
a  court-martial  and  the  prisoner  are  of  the  same 
profession,  and  likely  to  be  called  upon,  in  the 
performance  of  a  public  service,  to  act  together : 
it  is  therefore  of  consequence  that  a  perfect  har- 
mony, if  possible,  should  exist ;  and  that  no  jeal- 
ousies, or  resentments,  or  suspicions  be  present 
to  mar  the  success  of  any  enterprise.  Limited 
as  they  are  in  numbers,  and  governed,  to  a  con- 
siderable degree,  by  notions  of  pride  and  honor, 
it  is  certainly  desirable  that  all  causes  should  be 
removed,  which,  in  reference  to  one  another, 
might  wound  such  sentiment.  These  causes  do 
not  exist  in  civil  life,  to  introduce  into  courts  of 
justice  such  a  rule,  but  on  the  contrary,  the  rule 
now  followed  is  necessary,  for  a  fair  and  equita- 
ble division  of  the  duties  of  jurors,  that  when 
one  is  challenged  for  cause,  such  cause  should 
be  made  apparent  by  evidence,  given  in  under 
the  obligations  of  an  oath. 

The  question,  upon  the  admission  of  the 
grounds  of  challenge  assigned,  being  decided, 
the  court  re-opens,  and  the  decision  is  made 
known. 

The  parties  being  in  attendance,  the  judge  ad-  Oatha 
vocate   proceeds  to   administer  the   prescribed 
oath,  as  set  forth  in  the  69th  article  of  the  act 


«*•'  -         V  •  •' 

OP   THE    TRIAL   AND    ITS    INCIDENTS. 

CHAPTER     of  congress  of  April  10,  1806.     After  which  the 
•vn>        presiding  officer  administers  to  the  judge  advo- 
cate the  necessary  oath  of  secrecy,  prescribed 
by  the  same  article  of  war. 

The  mode  of  administering  the  oath  is  as  fol- 
lows :  the  members  of  the  court,  and  the  judge 
advocate  stand :  the  person  or  persons  to  be 
sworn  lift  the  right  hand,  ungloved,  when  the 
judge  advocate  recites,  in  an  audible  voice, 
"  You,  Col.  A.  B.,  Major  B.  C.,  Major  D.  F.,  and 
Captain  G.  H.,  (thus  naming,  with  his  rank,  each 
member  of  the  court,)  do  swear  that  you  will 
well  and  truly  try  and  determine,"  &c.  &c.  &c. 
"  So  help  you  God." 

The  presiding  officer  then  administers  the  oath 
to  the  ju'dge  advocate,  who  observes  the  same 
form ;  during  which  time,  all  the  members  of  the 
court  remain  standing,  and  observe  the  most 
decorous  silence  and  attention. 

Necessary  to         It  is  particularly  necessary,  that  the  judge  ad- 

tion  to  the  pris-  vocate  should  enter  in  the  proceedings,  the  facts, 

the  court  and    that  the  prisoner  was  asked,  after  the  warrant 

catewlrl  dufy  for  the  court  had  been  read,  whether  he  had  any 

objection  to  any  member;  and,  that  the  court 

and  the.  judge  advocate  were  duly  sworn.     In 

reference  to  this  latter  part, — 

case  of  Peter        It  was  decided  in  the  case  of  Peter  Clark,  a 

Clark,  seaman, 

and  decision,  seaman,  that  the  proceedings  were  irregular  and 
void,  because  it  did  not  appear  on  record,  that 
the  judge  advocate  was  sworn  according  to  law. 
"The  maxim  is,  that  which  does  not  appear, 
should  be  considered  as  not  existing :  and  as  the 
oath  to  be  taken  is  specifically  given  in  the  act 
of  congress,  and  the  important  duties  confided 
to  him,  may  determine  the  fate  of  the  accused, 


OP   THE    TRIAL    AND    ITS    INCIDENTS.  129 

from  the  record  which  he  keeps,  it  is  held  to  be     CHAPTER 
indispensable."1 


So  also  in  the  case  of  Midshipman  Guthrie,  it  case  of  Mid- 

shipman  Guth- 

was  decided,  ("June  9, 1840.)  for  the  same  reason,  ne,  and  ded- 

-    v  sion. 

that  the  omission  was  fatal.2 

The  same  oath  prescribed  to  be  taken  by  the  Oath  for  regi- 
members  of  a  general  court-martial,  is  likewise  rison  courts- 
directed  to  be  taken  by  the  members  of  a  regi- 
mental and  garrison  court-martial.     As  there  is 
no  judge  advocate  appointed  to  officiate  in  the 
two  latter,  there  is  no  particular  oath  of  secrecy 
required  of  the  recorder,  who  is  always  a  mem- 
ber of  the  court,  (the  junior,)  and  is  therefore 
bound  in  the  same  way,  respecting  silence,  as  a 
judge  advocate  would  be. 

Whenever  several  persons  are  to  be  tried  by  court  to  be 
the  same  court,  upon  different  charges,  the  court 
must  be  re-sworn  at  the  commencement  of  each 
trial,  and  the  record  of  each  case  made  up  sepa-  tmct' 
rately,  and  signed  by  the  president  and  judge 
advocate. 

It  is  now  that  the  prosecutor,  or  prisoner,  Application  for 
should  state  his  reasons  to  the  court,  if  he  desire  J° s^ement 
the  trial  to  be  postponed.     Unlike  the  practice 
of  the  civil  courts,  it  is  necessary  that  courts- 
martial  should  be  sworn,  in  order  to  invest  the 
members  with  a  judicial  character,  and  be  made 
acquainted  with  the  nature  of  the  subject  to  be 
investigated,  in  order  that  they  may  understand, 
more  definitely,  the  appropriateness  of  the  rea- 
sons for  delaying  proceedings. 

This  motion  ought,  if  possible,  to  be  always  w^  to  be 
made  before  the  arraignment  and  opening  of  the  made* 
prosecution;  though  there  may  be  very  good 

1  Opinions,  p.  1229.  2  Ibid.,  p.  1329. 

17 


130 


OP   THE   TRIAL   AND    ITS    INCIDENTS. 


CHAPTER 
VII. 


To  delay  the 
assembling  of 
the  court. 


causes,  arising  during  the  progress  of  the  trial, 
to  adjourn  the  court,  to  allow  the  requisite  time 
necessary  to  the  party  asking  it.  Such  adjourn- 
ment may  often  conduce,  essentially,  to  a  better 
developement  of  the  subject  undergoing  investi- 
gation ;  and  as  courts-martial  must  adjourn  from 
day  to  day,  it  would  appear  altogether  proper 
for  them  to  determine,  by  a  sound  discretion, 
whether  or  not,  on  any  particular  occasion,  a 
longer  adjournment  would  tend  to  the  better 
elucidation  of  the  subject  committed  to  their  ex- 
amination.1 

Application  to  delay  the  assembling  of  the 
court,  from  the  absence  of,  or  indisposition  of, 
witnesses,  or  the  illness  of  the  party,  should, 
when  practicable,  be  made  to  the  authority  di- 
recting the  assembling  of  the  court. 

TO  suspend  the  Application  by  either  party  to  suspend  the 
to  proceedings,  may  be  made  to  the  court  subse- 
quent to  the  swearing  in  of  the  members.  The 
reasons  assigned  may  be  supported  by  affidavit, 
and  if  in  reference  to  the  absence  of  a  witness, 
the  court  must  be  satisfied  that  the  witness  is 
material,  and  that  the  applicant  cannot  have 
substantial  justice  without.  A  precise  period 
of  time  must  be  named,  and  it  must  also  appear 

1  Naval  courts  martial  cannot  adjourn  for  a  longer  period  than  from 
day  to  day.  (N.  Laws,  p.  66.)  Such  has  been  the  interpretation 
of  the  law  by  naval  officers.  But  it  appears  to  the  writer  that 
the  restriction  is  limited  to  the  case  of  absent  members  only,  and 
that  therefore,  whenever  good  reasons  arise  to  delay  proceedings, 
such  as  for  instance,  the  absence  of  a  material  witness,  or  the  ill- 
ness of  the  prisoner,  &c.,  &c.,  the  court  might  justifiably,  and  le- 
gally, adjourn  over  for  a  reasonable  time  to  meet  the  emergency 
of  the  particular  case. 


be  named. 


OF   THE    TRIAL    AND    ITS    INCIDENTS.  131 

that  there  is  a  reasonable  prospect  of  obtaining     CHAPTER 
the  witness  within  the  specified  time.  VIIt 


If  illness  cause  the  absence  of  a  witness,  a  illness  of  wit- 

,        i  .         mj       .,  -,  •  ness-    Surgeon 

surgeon  may,  by  his  affidavit,  or  by  viva  voce  to  state  his  ma- 

J  ,  „     ,  .  bility,  &c. 

testimony,  state  the  inability  of  the  witness  to 
attend ;  what  disease ;  and  the  probable  time  ne- 
cessary to  elapse  before  the  witness  may  be  able 
to  appear. 

A  court-martial  would  necessarily  be  adjourn-  court  to  ad- 

,  -if-.  j>  .•   f          journ  for  Ulness 

ed  at  any  period  of  its  proceedings,  on  satisfac-  of  prisoner. 
tory  proof  by  a  military  medical  officer,  (or 
M.  D.  in  civil  life,  where  no  military  medical  of- 
ficer is  at  hand,)  that  the  prisoner  is  in  such  a 
state  as  to  render  it  dangerous  for  him  to  attend 
the  court. 

In  case  the  illness  of  the  prisoner  should  ap-  May  be  dissoi 
pear  likely  to  be  protracted  to  an  inconvenient 
space  of  time,  so  as  to  operate  to  the  inconveni- 
ence of  the  service,  the  court  may  be  dissolved ; 
and  though  the  trial  may  have  been  proceeded 
with,  the  prisoner  would,  on  recovery,  be  subject 
to  trial  by  another  court-martial. 

In  cases  where  a  prosecutor  (independent  of   Proceedings™* 

.  A  v  i  to  be  suspended 

the  judge  advocate)  is  a  party,  his  inability  to  on  account  of 

y '  J  the  prosecutor. 

appear,  either  from  illness  or  other  cause,  would 
hardly  justify  the  suspension  of  the  trial,  except 
for  a  very  limited  period.  And  the  reasons  for 
this  distinction  are,  that  the  prosecution  is  at  the 
suit  of  the  United  States,  and  the  judge  advo- 
cate can  assume  all  the  duties  of  the  prose- 
cutor.1 

1  This  is  made  the  rule  in  British  courts-martial,  but  a  pros- 
ecutor, other  than  the  regularly  appointed  judge  advocate  to  con- 
duct the  proceedings  before  an  army  court-martial  in  our  service, 
is  thought  to  be  unauthorized.  (Chap.  XV.) 


132  OP   THE    TRIAL    AND    ITS    INCIDENTS. 

CHAPTER         Where  delay  is  asked  for  on  the  part  of  the 
vn*        prosecution,  upon  the  plea  of  the  absence  of  a 


courts  martial  material  witness,  courts-martial  are  less  ready  to 

not  so  ready  to  J 

grant  delays  for  grant  it,  than  when  at  the  request  of  the  pris- 

the  prosecution,    & 

oner — and  this  not  only  as  a  principle  of  com- 
mon justice  to  afford  a  greater  latitude  on  the 
side  of  the  defence,  but  also  that  the  government 
can  fix  its  own  time  for  the  trial. 
Postponement        But  the  postponing  a  trial,  or  suspending  its 

of  trial,  or  delay  * 

in  proceedings    proceedings,  upon  the  application  of  either  party, 

not  a  matter  of   *  ,  .    ,  .          .,, 

right  to  either  is  not  however  a  matter  of  right ;  for  in  either 
case  the  court  may,  in  its  discretion,  refuse  or 
grant  the  motion. 

counsel  for  the       It  is  at  this  stage  of  the  proceedings  also, 

prisoner,  or  .  . 

Amicus  Curia,  though  it  may  be  allowed  at  any  time,  to  apply 
for  the  assistance  of  counsel.  Courts-martial 
always  admit  counsel  for  the  prisoner ;  and  all 
military  writers  admit  it  to  be  the  custom  to  al- 
low a  prisoner  to  have  counsel.  This  privilege 
of  the  prisoner  to  have  a  friend,  (amicus  curice,) 
is  of  advantage  to  all — by  the  assistance  render- 
ed to  the  accused,  and  to  the  court,  by  frequent- 
ly restraining  the  conduct  of  the  prisoner. 

counsel  not  ai-       The  counsel  for  the  prisoner  (amicus  curice) 

lowed  to  ad-  V  ' 

dress  the  court,  has  a  seat  near  the  prisoner,  and  instructs  him 

Communicates  A  ' 

in  writing.  what  questions  to  ask,  which  are  written  upon 
slips  of  paper,  and  handed  by  the  prisoner  to  the 
judge  advocate.  Whatever  points  may  arise  in 
the  course  of  the  trial,  on  which  remarks  or  ar- 
guments are  deemed  necessary  by  the  counsel, 
must  be  referred  to  in  that  way  in  writing,  as 
this  person  is  not  permitted  at  any  time  to  ad- 
dress the  court  during  its  proceedings.  Courts- 
martial  have  always  been  tenacious  on  this 
point,  and  to  a  certain  extent,  not  permitting  the 


OP   THE    TRIAL    AND    ITS    INCIDENTS.  133 

counsel  to  interfere  in  the  proceedings,  by  re-     CHAPTER 
marks,  or  by  pleading  and  argument,  is  very        VII> 
wise  and  necessary.     But  to  manifest  this  cau-  c°unsei  may 

J  read  tuc  w.- 

tion  and  jealousy  to  such  a  degree,  as  to  prohibit  fence- 
the  reading  of  the  prisoner's  defence  at  the  close 
of  the  trial  by  his  counsel,  though  a  military 
friend  may  be  allowed  to  do  so,  seems  to  have 
no  sufficient  reason  for  its  support.  For  in  what 
way  can  the  court  be  differently  affected  by  the 
reading  of  a  written  argument  and  statement, 
be  it  by  a  military  friend  or  by  professional  coun- 
sel, since  neither  language  or  argument  can  be 
otherwise  than  what  such  previously  prepared 
paper  contains.  Indeed  there  exists  some  es- 
pecial reasons  for  granting  leave  to  the  counsel 
to  read  this  paper,  inasmuch,  as  having  com- 
posed or  written  it,  he  most  likely  is  the  most 
able  and  best  fitted  to  read  it  in  such  a  man- 
ner, by  accent  and  emphasis,  as  to  present  its 
character,  in  a  true  light  to  the  court.  The  only 
objection  to  be  made  is,  where  the  counsel  has 
introduced  improper  or  intemperate  language,  or 
given  erroneous  impressions  as  to  the  facts  in 
evidence,  and  in  such  a  case  the  court  or  judge 
advocate  should  stop  the  reading  of  it  and  mark 
the  page  containing  the  objectionable  part.  As 
has  been  observed  above,  to  allow  counsel  to  ad- 
dress, or  speak  to  the  court,  might  be  produc- 
tive of  inconvenience,  but  to  prevent  his  reading 
a  written  defence,  couched  in  proper  language, 
seems  to  be  without  reason  and  entirely  unne- 
cessary. 

There  have  been  many  exceptions  to  such 
rule,  and  the  practice  should  be  founded  upon 
such  exceptions.  At  the  trial  of  Lieut.  Col. 


134  OP   THE    TRIAL    AND    ITS    INCIDENTS. 

CHAPTER     Brant,  in  1839,  the  defence  was  read  by  his 
v"-        counsel,  a  member  of  the  legal  profession — and 

such  has  been  done  in  many  other  cases. 
Prisoner's  right      ft  matters  not  whether  the  prisoner  is  to  be 

to  counsel ;  * 

court  competent  tried  bv  a  general,  a  regimental,  or  a  garrison 

to  object  to  the  *  i  i  » 

person  designa-  court-martial,  as  to  his  right  to  have  the  assist- 
ance of  counsel.  But  although  the  court  will 
admit  this,  still  it  is  competent  for  them  to  ob- 
ject to  the  person  designated,  and  this  right  on 
the  part^of  the  court  is  founded  in  the  experi- 

where  soldiers  ence  of  service.     It  is  frequently  the  case,  that 

may  be  admit-  .  .  .. .  ,  , 

ted  or  rejected  among  the  soldiers  there  are  some  who  are 
theircomrades.  known,  significantly,  as  lawyers,  and  are  apt  to 
be  very  forward  and  troublesome  persons,  when 
admitted  as  counsel  for  their  comrades.  Char- 
acters of  this  description  are  much  more  likely 
to  be  prejudicial,  than  assisting,  to  the  cause  they 
espouse  or  advocate;  and  courts-martial  there- 
fore have  wisely  claimed  and  exercised  the 
right  of  refusing  their  assent  for  the  appearance 
of  such  persons.  It  will  hardly  ever  occur  that 
an  objection  be  made  to  the  appearance  of  a 
suitable  friend  for  the  prisoner,  and  the  rule  laid 
down  above  is  only  established  and  acted  upon 
for  the  best  interests  of  all  the  parties  before 
the  court. 
Arraignment  of  The  court  having  been  sworn  in  the  presence 

prisoner.  °  A 

of  the  prisoner,  the  judge  advocate  reads  the 
charge  to  the  prisoner  in  open  court,  whom  the 
judge  advocate  arraigns,  by  addressing  by  his 
proper  title  or  rank,  and  name.  "You  have 
heard  the  charge  or  charges  preferred  against 
you ;  how  say  you — guilty  or  not  guilty  ?" 
pica  of  the  pris-  The  prisoner  may  plead  guilty, — or  not  guilty ; 
but  it  must  be  made  simply  and  unqualified,  as 


oner. 


OF   THE    TRIAL    AND    ITS    INCIDENTS.  135 

nothing  exculpatory  can  at  this  time  be  received.     CHAPTER 
No  special  justification  can  be  offered  as  a  plea,        VIJ' 
as  such  would  be  an  anticipation  of  the  defence. 
He  may  stand  mute,  that  is,  refuse  to  answer ; 
or  answer  foreign  to  the  purpose ;  or  may  plead 
in  bar  of  trial. 

The  general  regulations  for  the  army,  in  para-  Evidence  to  be 
graph  228,  say,  that  "  In  cases  of  enlisted  sol-  the6p^onerer< 
diers,  where  the  prisoner  pleads  guilty,  and  where  P 
the  punishment  of  the  offence  charged  is  discre- 
tionary, including  a  wide  range  and  variety  of 
punishment,  the  court  will  receive  and  report  in 
its  proceedings,  any  evidence  that  may  be  offered 
in  behalf  of  the  prisoner,  to  illustrate  the  charac- 
ter and  degree  of  the  offence." 

By  the  above,  it  is  perceived,  that  the  action 
of  the  court,  in  such  a  case,  is  confined  to  the 
trial  of  an  enlisted  soldier,  and  that  the  evidence 
to  be  considered  by  them  must  be  offered  in  be- 
half of  the  prisoner. 

A  regulation  formerly  existed  requiring  courts- 
martial,  in  all  cases  where  the  prisoner  pleaded 
guilty,  to  receive  evidence,  so  as  to  afford  a  full 
knowledge  of  the  circumstances.  This  rule  was 
made  very  frequently  a  question  of  propriety, 
and  particularly  where  the  prisoner,  as  was 
sometimes  the  case,  objected  to  the  reception  of 
any  evidence,  and  claimed  the  full  benefit,  as  he 
risked  the  dangers,  of  his  plea. 

It  is  very  evident  that  cases  may  arise  in 
which  it  is  better  for  the  prisoner,  to  admit  the 
crime  as  declared,  upon  the  face  of  the  charge, 
than  to  enter  into  an  explanation  of  the  inci- 
dents attending  its  commission,  by  evidence. 
The  rule,  no  doubt,  was  founded  upon  consid- 


y  N  > 


v 


136 


CHAPTER 


Practice  of 

courts-martial 
to  warn  the 
prisoner  of  the 
danger  of  such 
plea. 


OF   THE    TRIAL    AND    ITS    INCIDENTS. 

erations  of  justice  in  behalf  of  the  prisoner,  and 
to  shield  him  from  an  undue  punishment,  by 
reason  of  his  plea,  which,  from  his  situation,  or 
ignorance,  or  any  other  cause,  might  have  been 
proffered.  While  in  support  of  the  rule,  it  was 
argued  to  be  of  necessity  for  the  information  of 
the  reviewing  officer,  to  enable  him  to  act  with 
more  certainty  upon  the  sentence  adjudged,  and 
so  far,  in  fact,  to  be  in  favor  of  the  prisoner ;  it 
was  contended,  on  the  other  side,  not  to  be  obli- 
gatory by  any  rule  of  law, — that  it  was  a  right 
the  prisoner  possessed  by  choosing  or  preferring 
the  plea  of  guilty,  to  confine  the  notice  of  the 
court  to  the  crime  alleged  against  him,  as  it  ap- 
peared on  the  face  of  the  charge ;  and  finally,  by 
referring  to  the  constitution,  as  illustrative  of  the 
opinion,  by  which  (for  treason,  the  highest  polit- 
ical crime)  a  confession  in  open  court  is  consid- 
ered equivalent  to  the  testimony  of  two  wit- 
nesses. 

The  practice  now  is,  therefore,  to  warn  the 
prisoner  of  the  danger  of  such  a  plea,  and  to  ad- 
duce all  evidence  that  may  tend  to  mitigate,  or 
explain  more  favorably  the  conduct  of  the  ac- 
cused. In  every  instance  of  this  kind,  in  which 
witnesses  are  produced,  the  right  of  cross-exam- 
ination exists. 

A  prisoner  may  stand  mute.  The  seventieth 
article  of  war  provides,  that  "  when  a  prisoner 
arraigned  before  a  general  court-martial  shall, 
from  obstinacy  and  deliberate  design,  stand  mute, 
or  answer  foreign  to  the  purpose,  the  court  may 
proceed  to  trial  and  judgment  as  if  the  prisoner 
had  regularly  pleaded  not  guilty."  And  so, 
should  a  prisoner,  having  made  objections  to 


OF   THE    TRIAL   AND    IIS    INCIDENTS.  137 

the  court,  which  were  not  allowed,  refuse  to     CHAPTER 

plead,  or  to  offer  any  defence,  it  would  subject IE: . 

him  to  the  same  procedure  as  though  he  stood 
mute ;  and  the  court  would  proceed  in  the  trial 
and  pass  judgment. 

In  former  times,  in  the  English  common  law  judgment  of 
courts,  standing  mute  brought  a  terrible  penalty  ^re. 
upon  the  prisoner,  by  subjecting  him  to  the 
judgment  of  peine  forte  et  dure.  The  manner 
of  this  punishment  was,  that  the  prisoner  be 
sent  to  the  prison  whence  he  came,  and  put  in  a 
dark  lower  room,  and  there  be  laid  naked  upon 
the  bare  ground,  upon  his  back,  his  legs  and 
arms  drawn  and  extended  with  cords  to  the 
four  corners  of  the  room,  and  upon  his  body  laid 
as  great  a  weight  of  iron  as  he  can  bear,  and 
more.  The  first  day  to  have  three  small  pieces 
of  barley  bread,  without  drink;  the  second  to 
have  three  draughts  of  water,  of  standing  water 
next  the  door  of  the  prison,  without  bread,  and 
this  to  be  his  diet  till  he  die.1 

It  certainly  seems  very  extraordinary  that  any 
person  would  subject  himself  to  such  torture; 
and  yet  there  are  cases  reported  of  such  deter- 
mination, and  the  infliction  of  the  punishment — 
and  the  reasons  for  thus  acting  are  probably  to 
be  found  in  a  regard  to  their  posterity,  as  the 
law,  at  the  time,  in  England,  in  case  of  the 
suicide  or  conviction  of  the  prisoner,  forfeited  his 
landed  property  to  the  crown,  but  in  case  of 
standing  mute,  it  was  saved  to  the  heir.2 

By  the  common  law  of  England,  obstinately 
standing  mute,  upon  arraignment  for  certain  spe- 

i  Kale's  Hist.  PI.  Cor. 
8  4  Black.  Com.,  325.    Note. 
18 


138  OP   THE   TRIAL    AND    ITS    INCIDENTS. 

CHAPTER     cies  of  offences,  was  deemed  equivalent  to  con- 

YI1-        viction,  upon  which  judgment  followed.1 
Mate  by  via-        A  prisoner  may  stand  mute  by  the  visitation 

tationofGod.  ,  .   i  •/.   -^  i_  •       V-T, 

of  God,  in  which  case,  if  it  be  only  an  inability 
to  articulate,  the  court  may  proceed  as  though  a 
plea  of  not  guilty  had  been  entered. 

In  such  cases,  in  the  common  law  courts,  the 
court,  ex  officio,  empanel  a  jury  to  inquire  whe- 
ther he  stands  mute,  ex  visitatione  Dei.  "But 
whether  judgment  of  death  (says  Blackstone,) 
can  be  given  against  such  a  prisoner,  who  hath 
never  pleaded,  and  can  say  nothing  in  arrest  of 
judgment,  is  a  point  yet  undetermined." 
Plea  to  the  ju-  A  prisoner  may  plead  to  the  jurisdiction  of 

risdiction  of  the  J    r 

«>««•  the  court.  If  a  soldier  was  arraigned  before  a 

court-martial  for  a  civil  crime ;  or  brought  before 
an  inferior  court-martial  not  having  cognizance 
of  the  offence  charged;  or  if  the  court-martial 
should  not  be  legally  constituted,  either  as  to 
the  authority  by  which  it  was  ordered,  or  as  to 
the  number  of  its  members — either  of  these 
would  be  a  sufficient  cause  of  exception  to  its 
jurisdiction ;  and  an  officer  or  soldier  would 
plead  accordingly,  when  similar  causes  exist,  to 
make  the  competency  of  the  court  doubtful. 

Plea  in  bar  of  '£ he  prisoner  may  plead  specially  in  bar  of 
trial.  A  special  plea  in  bar  of  trial,  goes  to  the 
merits  of  the  charge  or  indictment,  and  gives  a 
reason  why  the  prisoner  ought  not  to  answer  it 
at  all,  nor  put  himself  upon  his  trial  for  the  crime 
alleged. 

special  pleas  in  Special  pleas  in  bar,  are  of  four  kinds.  1.  A 
former  acquittal.  2.  A  former  conviction.  3.  A 
former  attainder.  4.  A  pardon.2  Such  is  the  di- 

1  4  Black  Com.,  325.  *  2  Ibid.  335. 


par. 


OP   THE   TRIAL    AND    ITS    INCIDENTS.  139 

vision  by  the  English  common  law ;  the  third,  or     CHAPTER 
an  attainder,  not  being  applicable  to  our  country. 


There  are  other  matters  which  may  be  plead-  Limitation  of 

'  .  time  under  tho 

ed  in  bar  of  trial ;  as  for  instance,  that  the  crime  statute. 
charged  has  taken  place  more  than  two  years, 
before  the  issuing  of  the  order  for  the  trial. 
Now.  it  must  be  observed,  that  although  this  The  prisoner 

.  cannot  waive 

plea,  under  the  statute  of  limitation,  when  the  objection. 
made  by  the  prisoner,  is  decisive,  still,  it  does 
not  follow  that  the  court,  upon  the  waiving  of 
such  plea,  or  at  the  request  of  the  prisoner  to 
proceed,  notwithstanding,  in  the  trial,  may  exa- 
mine into  matters  said  to  have  arisen  more  than 
two  years  prior  to  the  date  of  the  order,  by 
which  the  court  martial  was  appointed  for  such 
trial.  In  reference  to  this  point,  the  attorney 
general,  (July,  1820,)  observed  : — 

"  In  looking  into  the  policy  of  the  article  of  Poiky  of  ju» 
war  (88th,)  under  consideration,  I  do  not  think 
that  it  can  be  properly  regarded  as  confined  ex- 
clusively to  the  relief  of  persons  under  arrest. 
On  the  contrary,  I  think  that  its  policy  had  a 
wider  scope  ;  that  the  prompt  prosecution  of  of- 
fences was  considered  as  essential  to  the  general 
discipline  and  moral  purity  of  armies  ;  that  the 
design  of  the  rule  was  to  discourage  that  ill 
judged  lenity,  which  is  so  well  calculated  to  des- 
troy the  efficiency  of  an  army,  and  to  prevent 
those  inveterate  animosities  which  find  their  pro- 
per nourishment  only  in  the  remembrance  and 
prosecution  of  state  offences." 

"  The  rule,  therefore,  being  bottomed  on  these 
grounds  of  public  policy,  I  do  not  think  that  it 

1  The  period  within  which  offences  may  be  tried  by  naval 
courts-martial  is  not  limited. 


140 


CHAPTER 

VII. 

Court-martial 
cannot  proceed 
to  examine  into 
offences  of  mora 
than  two  yean* 
standing. 


Plea  of  former 
acquittal  or 
conviction. 


Case  of  Cap- 
tain Howe. 


OP    THE    TRIAL    AND    ITS    INCIDENTS. 

is  competent  to  any  individual  to  waive  it ;  or 
that  a  court-martial  can  proceed,  even  at  the  ap- 
plication of  the  arrested  party,  to  examine  into 
offences  of  more  than  two  years'  standing  pre- 
vious to  the  order  summoning  the  court,  unless 
the  prosecutor  can  show  that  the  party  accused, 
by  reason  of  absence,  or  some  other  manifest 
impediment,  had  not  been  amenable  to  justice 
within  the  time  limited  by  the  rule."1 

A  former  acquittal  or  conviction  pleaded,  must 
have  reference  to  a  trial  by  a  court-martial. 
The  same  acts,  as  they  may  offend  against  the 
rights  of  private  persons,  may  also  violate  the 
proprieties  of  military  discipline,  and  as  such, 
may  be  investigated  by  both  civil .  and  military 
courts.  This  is  a  principle  perfectly  well  es- 
tablished in  the  military  service,  and  has  been 
acted  upon  and  approved  by  the  highest  authority. 

In  May,  1842,  Capt.  M.  T.  Howe,  of  the  2nd 
Dragoons,  was  tried  upon  a  charge  for  "  conduct 
prejudicial  to  good  order  and  military  disci- 
pline," in  having  beaten,  or  caused  to  be  beaten, 
in  a  cruel  and  inhuman  manner,  a  private  of  his 
company.  Upon  arraignment,  Captain  Howe 
pleaded  in  bar  of  trial,  that  he  had  been  tried 
and  acquitted  for  the  said  act,  upon  an  indict- 
ment of  manslaughter,  and  the  plea  was  duly 
verified  by  the  production  of  the  record  of  ac- 
quittal of  the  civil  court.  But  the  court-martial 
would  not  admit  the  validity  of  such  plea,  and 
proceeded  to  trial.  Captain  Howe  was  con- 
victed upon  the  charge,  and  sentenced  to  be  sus- 
pended from  rank,  pay,  and  emoluments,  for 
twelve  calendar  months.  The  proceedings  and 

i  Mr.  Wirt.     Opinions,  p.  280. 


OP   THE    TRIAL    AND    ITS    INCIDENTS.  141 

decision  of  the  court,  were  approved  and  con-     CHAPTER 
firmed.1 

It  is  also  a  settled  principle,  that  a  court-mar-  courts-martial 

, .    ,   .  ,    ,  *.  ff.    .         c-  •  not  to  take  no- 

tial  is  not  to  take  notice,  ex  ojjicio,  of  a  previous  tice  ex  offido 
trial;  and  this  rule  was  thus  expressed  in  an  trial. pr< 
opinion  of  the  attorney  general  in  1818.2 

"  The  plea  is  the  privilege  of  the  prisoner,  and 
if  he  does  not  use  it,  however  the  fact  may  be, 
the  court  will  take  no  notice  of  it,  so  as  to  bar 
the  trial.  The  previous  trial  could  only  be  put 
in  issue  by  a  plea  from  the  prisoner ;  and  in  no 
other  way  could  the  judgment  of  the  court  be 
judicially  directed  to  it." 

There  seems  to  be  a  misunderstanding  by  offi-  what  consti- 

^      J  tutes  a  formei 

cers,  as  to  what  constitutes  a  former  acquittal  or  acquittal  or 

mi  •  .11  •   i  conviction. 

conviction.  The  eighty-eighth  article  of  war 
declares,  that,  "  no  officer,  non-commissioned 
officer,  soldier,  or  follower  of  the  army,  shall  be 
tried  a  second  time  for  the  same  offence." 

Now  it  is  clear,  that  the  true  intent  of  these 
words,  applies  only  to  such  persons  described, 
who  have  been  legally  tried,  and  have  been  le- 
gally acquitted  or  convicted.  If  the  court  had 
no  right  to  try  such  persons,  or  such  offences  as 
were  charged  against  them ;  or  if  it  was  ille- 
gally constituted ;  or  if  its  proceedings  were 
contrary  to  law  ;  or  the  sentence  unauthorized ; 
such  illegality  vitiates  the  whole  proceedings, 
and  the  prisoner  must  be  discharged.  Yet,  in 
such  a  case,  the  proceedings  had,  do  not  consti- 
tute a  trial,  as  they  were  not  legally  conducted, 
and  the  prisoner  may,  upon  a  new  charge,  be 
brought  to  trial  before  another  court. 

1  General  Order,  No.  34,  of  1842. 
a  Mr.  Wirt.    Opinions,  p.  171. 


142  OF   THE    TRIAL    AND    ITS    INCIDENTS. 

CHAPTER  And  so  an  arrest,  and  discharge  without  trial, 
Y1I>  is  not  a  good  plea  in  bar.  In  the  case  of  Lieu- 
tenant Gassoway,  who  was  tried  in  July,  1819, 
the  prisoner  offered  such  a  plea  in  bar  of  trial. 
Mr.  Wirt,  the  attorney  general,  to  whom  the 
question  was  referred,  said :  "  the  fifth  amend- 
ment (of  the  constitution,)  provides  that  no  per- 
son shall  be  subject,  for  the  same  offence,  to  be 
twice  put  in  jeopardy  of  life  or  limb.  But  a  mere 
arrest,  even  in  cases  punishable  in  life  or  limb,  is 
not  considered  as  constituting  this  jeopardy. 
The  principle  is  derived  to  us  immediately  from 
the  common  law.  It  is  a  maxim  of  this  law, 
"  that  a  man  sfiall  not  be  brought  into  danger  of 
his  life  more  than  once  for  the  same  offence ;" 
but  to  give  the  benefit  of  this  maxim,  it  is  ne- 
cessary that  he  should  have  been  actually  ac- 
quitted, or  convicted  on  a  former  trial,  and  the  re- 
cord of  this  fact  must  be  produced."  (Opinions, 
page  214) 

piea  in  bar  of  A  plea  in  bar,  under  the  statute  of  limitation, 
epod. w Case  of  must  be  good,  when  a  manifest  impediment  to 
trial  has  not  existed.  In  the  case  of  Captain 
Howe,  quoted  before,  there  was  a  plea  of  this 
kind  made ;  (the  offence  was  committed  on  6tL 
December,  1839,  and  the  order  for  the  court 
which  assembled  to  try  him,  was  dated  2nd 
March,  1842 ;)  but  the  court  decided,  that  the 
civil  courts  having  taken  cognizance  of  the  of- 
fence of  Captain  Howe,  no  court-martial  could 
assume  a  jurisdiction  of  the  matters  alleged 
against  him  during  the  pendency  of  the  action 
of  the  civil  court,  and  that  therefore  a  manifest 
impediment  did  exist  to  prevent  his  speedier 
trial. 


OP   THE    TRIAL   AND    ITS    INCIDENTS,  143 

This  principle,  upon  which  the  rule  is  predi-     CHAPTER 
cated,  has  been  confirmed  by  a  formal  decision,        YII> 
upon  a  lil^e  question  being  submitted  by  the 
navy  department  to  the  attorney  general,  in 
May,  1839.1 

The  opinion  then  given,  was — as  to  the  power 
of  a  court-martial  to  proceed  against  an  offender, 
whilst  a  prosecution  is  pending  against  him  be- 
fore a  court  of  criminal  jurisdiction  for  the  same 
offence.  "I  can  feel  no  hesitation  in  saying, 
(says  the  attorney  general,)  that  until  he  shall 
be  discharged  from  the  prosecution  pending  be- 
fore the  civil  tribunal,  no  court-martial  can  be 
held  upon  him.  Any  such  interference  would 
be  to  place  the  military  above  the  civil  autho- 
rity, which  is  wholly  inadmissible  in  our  govern- 
ment" 

In  cases  where  the  time  elapsed,  between  the  The  prisoner  » 
commission  of  the  offence  and  the  date  of  the  limitation: 

_  .,  ,,  •  i*      -i  -i  i  •      •       i    court  to  assume 

order  for  trial,  exceeds  the  specified  and  limited  that  impedi- 

.     ,     ,  ,      ,  ,  ,  . .    ment  did  exjrt. 

time,  it  is  held,  that,  unless  the  prisoner  urges  it 
as  an  objection,  it  is  not  the  province  of  the 
court  to  inquire  into  the  cause  of  delay  in  the 
outset,  and  before  the  prosecutor  opens  the  case, 
as  such  would  be  to  assume  the  illegality  of  the 
order ;  but  the  court  should  assume  that  "  mani- 
fest impediment"  did  exist,  and  leave  the  facts 
to  be  developed  by  witnesses  in  the  ordinary 
way.  Precedents  of  this  kind,  are  necessarily 
very  few — and  the  case  of  Lieutenant  Colonel 
Johnston,  cited  by  "  Hough  on  Courts-martial," 
at  page  469,  is  rather  a  confused  argument,  by 
which  the  rule  seems  to  have  been  fixed.  How- 
ever, such  is  proper,  as  it  would  hardly  be  de- 

1  Hon.  Mr.  Grundy.     Opinions,  p.  1276 


144 


OP   THE    TRIAL    AND    ITS    INCIDENTS. 


CHAPTER 
VII. 


pardon. 


Courts  bound 
to  investigate 
all  matter  le- 
gally presented 
to  them. 


corous  in  a  court-martial  to  assume,  at  the  out- 
.  set  of  a  trial,  that  the  government,  or  function- 
ary, from  whom  the  order  emanated,  had  acted 
illegally. 

A  pardon  may  be  pleaded  in  bar  of  trial ;  as 
such  at  once  destroys  the  end  and  purpose  of 
the  charge,  by  remitting  that  punishment,  which 
the  prosecution  is  calculated  to  inflict.1  If  the 
pardon  is  conditional,  the  condition  must,  of 
course,  be  shown  to  have  been  performed. 
Thus,  if  a  soldier  were  charged  with  desertion, 
he  might  plead  a  general  pardon  by  the  procla- 
mation of  the  president,  and  prove  that  he  had 
fulfilled  its  conditions.2 

How  far  a  court  may  legally  decline  to  in- 
vestigate a  charge  against  an  officer  or  soldier, 
for  which  the  party  has  been  previously  ar- 
rested, or  punished,  and  afterwards  released,  is 
by  some  considered  doubtful.  Instances  of  this 
kind  have  been  approved,  as  in  the  case  of  Cap- 
tain G.  J.  Halliday,  of  the  10th  regiment  of  foot, 
quoted  by  Simmons,  page  181.  I  am  of  opinion 
that  a  court  cannot  reject  a  charge  on  this 
ground.  It  may  be  a  sufficient  reason  for  them 
to  affix  a  mitigated,  or  declare  no  punishment  at 
all ;  but  when  matter,  legally  cognizable  by  a 
court-martial,  is  referred  to  them  for  investiga- 
tion by  competent  authority,  they  are  bound  to 
act  upon  it,  and  proceed  with  the  trial. 

If  a  commanding  officer,  or  other,  should  by 
law  be  empowered,  (as  is  the  case  in  the  navy,) 

1  Black.  Com.,  337. 

2  Such  a  proclamation  was  made  by  the  Prlsident  after  the 
termination  of  the  Black  Hawk  War  in  1832,  when  many  soldiers 
deserted  from  dread  of  the  cholera. 


OF    THE  «TRIAL    AND    ITS    INCIDENTS.  145 

to  inflict  a  certain  kind  and  degree  of  punish-  CHAPIER 
ment  for  some  offences,  and  this  power  should  VII>  _ 
be  exercised,  then  as  discipline  thereby  has  been 
duly  vindicated,  there  is  no  doubt,  that  a  plea  in 
bar,  under  like  circumstances,  would  be  sus- 
tained ;  and  of  course  the  preceding  paragraph, 
in  which  the  right  of  the  court  to  entertain  such 
a  plea  is  denied,  does  not  apply ;  that  is  meant 
to  refer  to  cases  of  mere  arbitrary  or  discretion- 
ary punishment  at  the  mere  will  of  the  officer, 
without  the  recognition  of  law. 

An  arrest  of  an  officer,  or  the  connnement  of  The  previous 
a  soldier,  from  which  the  party  has  been  releas-  &*?  o°  soldier" 
ed,  would  not  therefore  be  a  bar  to  trial  in  all  good  p7eTina 
cases,  as  there  might  exist,  or  be  discovered, 
very  substantial  reasons  for  a  prosecution  of  the 
offence  before  a  court-martial.     Yet  the  imposi- 
tion of  an  arrest,  or  other  exercise  of  authority, 
as  a  mere  arbitrary  punishment,  without  an  in- 
tention on  the  part  of  the  superior  officer  to  call 
for  a  trial,  would  be  a  cause  of  just  complaint, 
though  it  could  not  intervene  as  a  reason  to  pre- 
vent a  trial,  but  would  very  justly  be  considered 
in  the  apportionment  of  punishment. 

The  prisoner,  on  being  arraigned,  may  plead  The  prisoner 
to  the  want  of   definite   specification   in   the  wamo/definite 

i  ,  •  i  .  •  statement  in 

charge,  as  to  matter,  or  to  time,  where  time  is  the  charge. 
an  essential  part  of  the  offence ;  or  in  order  to 
fix  the  identity.     The  objection  urged  would  ne- 
cessarily be,  that  the  specifications  were  couched 
in  terms  too  vague,  to  admit  of  a  pointed  or  par- 
ticular defence,  and  that,  should  another  prose- 
cution be  urged  against  him,  he  could  not  con 
sistently  plead  that  he  had  been  previously  tried 

for  the  same  offence. 

19 


146 


OF    THE    TRIAL    AND    ITS    INCIDENTS. 


CHAPTER 
VII. 


When  the 
special  plea  is 
reasonable, 
procedure  of 
the  court. 


This  objection,  however,  if  the  prisoner  should 
prefer  so  to  do,  might  be  put  off  until  the  de- 
fence, or  be  made  the  subject  of  observation  sub- 
sequent to  pleading,  since  the  prosecution  would 
in  course  identify  the  facts  upon  which  the 
charge  was  based,  and  therefore  save  the  priso- 
ner from  a  second  trial  on  charges  built  on  those 
facts.  A  total  want  of  specification  in  the  charge, 
can  undoubtedly  be  urged  as  a  sufficient  reason 
for  declining  all  defence,  and  would  render  the 
proceedings  nugatory,  or  harmless  to  the  priso- 
ner, as  no  sentence,  under  such  circumstances, 
could  be  maintained.  The  same  technical  nicety 
which  courts  of  civil  jurisdiction  observe  in 
criminal  cases,  is  not  desirable  or  necessary  in 
the  proceedings  of  a  court-martial ;  and  excep- 
tions made  to  form  or  matter,  are  only  admitted 
by  them  when  such  appear  essential  to  abstract 
justice.  When  such  objections  ought  to  be 
made  by  an  officer,  must  depend  upon  his  own 
sense  of  propriety,  and  what  is  due  to  the  vin- 
dication of  his  reputation ;  for  it  must  be  sup- 
posed, that  in  cases  where  the  charge  implicates 
the  honor  of  the  accused,  he  would  not  desire  to 
postpone,  or  avoid  a  trial,  by  raising  a  mere 
technical  objection  to  the  form  or  language  of  the 
charge. 

If  the  special  plea  in  bar  be  reasonable,  or 
plausible,  though  there  should  exist  no  precedent 
for  the  guidance  of  the  court,  it  is  proper  that 
the  court  should  hear  evidence  on  the  point  rais- 
ed; and  if  the  plea  be  received  as  valid,  the 
court  would  adjourn,  having  committed  to  the 
record  all  the  facts  of  their  proceedings,  and  sub- 


OP    THE    TRIAL    AND    ITS    INCIDENTS.  147 

iriit  such  record  to  the  authority  by  which  the     CHAPTER 
court  was  assembled.  VII> 

A  plea  in  abatement  may  be  offered,  but  as  Plea  of  abate- 
such  is  merely  dilatory,  there  can  no  essential 
benefit  flow  from  it  for  the  prisoner,  and  there- 
fore, when  there  is  ground  for  such  plea,  (which 
can  very  rarely  happen,)  as  for  a  misnomer,  or 
false  addition,  it  is  competent  for  the  court  to 
permit  the  error  to  be  amended,  upon  the  decla- 
ration of  the  party ;  "  for  it  is  a  rule  upon  all 
pleas  of  abatement,  that  he  who  takes  advan- 
tage of  a  flaw,  must,  at  the  same  time,  show  how 
it  may  be  amended."1 

There  is  another  plea,  known  in  the  civil  Demurrer. 

*       >  *  Courts-martial 

courts  as  a  demurrer,  which  admits  the  truth  of  do  ™>t  admit 

such  plea. 

the  facts  charged,  but  denies  the  inference  as  al- 
leged by  the  charge — that  is,  "  the  prisoner  joins 
issue  upon  some  point  of  law  in  the  indictment, 
by  which  he  insists  that  the  fact,  as  stated,  is 
not"  mutiny,  or  disobedience  of  orders,  or  con- 
duct unbecoming  an  officer  and  a  gentleman, 
&c. ;  this  plea  need  not  be  made,  and  a  court- 
martial  would  not  admit  it,  as  all  the  advan- 
tages of  it  may  be  taken  on  a  plea  of  not 
guilty. 

It  is  not  a  good  plea  in  bar  of  trial,  that  the  Not  a  good  plea 

.  •    i       1         •   i  f°r  th°  prisoner 

prisoner  has  not  been  furnished  with  a  copy  of   that  he  has  not 

a  copy  of  the 

the  charges,  or  that  there  is  a  variance  between  charges,  or  that 

.111.  11  1*1      there  is  a         ' 

the  copy  furnished  him,  and  the  one  upon  which  ance,  &c. 
he  is  arraigned.     Such  objection  can  only  ope- 
rate to  delay  the  proceedings,  as  the  court  would, 
undoubtedly,  under  such  circumstances,  if  the 
difference  between  the  copies  of  the  charges  was 

i  4  Black.  Com.,  334. 


148  OP    THE    TRIAL    AND    ITS    INCIDENTS. 

CHAPTER     material,  allow  a  proper  time  for  the  prisoner  to 
prepare  himself  to  meet  the  charges.1 


The  ordinary         The   ordinary  plea  offered  is,  "not  guilty," 

plea,  is  not  *     * 

guilty,  wit-     upon  which  the  trial  proceeds.     The  plea  being 

nesses  retire  ,,1.,  i  11        i        /•  • 

until  called  for.  recorded,  the  judge  advocate  calls  the  first  wit- 
ness, and  gives  notice,  that  should  there  be  any 
persons  present  in  court  who  have  been  sum- 
moned as  witnesses,  they  will  retire  until  called 
for,  as  it  is  a  rule,  that  the  witnesses  of  neither 
party  can  be  present  during  the  examination  of 
other  witnesses. 

prosecutor  to         In  cases  where  a  prosecutor2  is  appointed,  or 

be  first  exam-  rr 

ined.  appears  before  the  court,  who  is  also  a  witness, 

it  is  necessary  that  he  should  be  the  first  exam- 
ined, though  the  fact  of  having  been  present  du- 
ring the  delivery  of  the  testimony  by  others, 
would  not  preclude  him  from  being  called  again 
by  the  court,  should  circumstances  render  such 
a  course  necessary.  It  is,  of  course,  much  bet- 
ter that  his  examination  should  be  so  full  as  to 
render  such  procedure  uncalled  for.  It  may 
likewise  happen,  that  a  person  has  heard  all  the 
evidence  given  in,  and  be  afterwards  cited  as  a 

Persons  who     witness  in  the  case.     This  cannot  make  such 

hear  the  testi-  •  ,1  i  j. 

mony  of  other    person  incompetent,  though,  according  to  circum- 
nTth8erebyre     stances,  the  character  of  the  witness,  &c.,  it 
made  i  ompe-  mjgnj.  affect  m's  credibility.     It  is  seldom,  how- 
ever, in  trials  before  military  courts,  that  such  an 

1  The  38th  Article  of  the  Rules  for  the  Regulation  of  the  Navy, 
provides  for  any  different  matter  which  may  be  alleged  against 
a  prisoner.     (Homan,  Naval  Laws,  pp.  65,  66.) 

2  The  case  of  a  prosecutor  being  permitted  to  appear,  has  been 
previously  remarked  upon  as  inadmissible,  and  the  author  has  in- 
serted the  provision  above  referred  to,  and  in  other  places  in  the 
course  of  this  work,  in  order  that  the  distinction,  and  objections  in 
all  such  cases,  might  be  more  clearly  understood. 


OP    THE    TRIAL    AND    ITS    INCIDENTS.  149 

occurrence  has  place,  as  the  witnesses  are  gen-     CHAPTER 
erally  well  known,  and  are  duly  notified  to  at-        VIL 
tend,  previous  to  the  meeting  of  the  court. 

The  judge  advocate,  or  person,  appointed  to  judge  advocate 
prosecute,  may,  at  the  opening  of  the  trial,  make 


such  statement  or  view  of  the  evidence  as  he  guagTto  be  " 
thinks   expedient,    being  careful,  at  the   same  p 
time,  that  the  language  employed  by  him  is  per- 
fectly respectful  to  the  court,  and  applicable  to 
the  charges.     No  insinuation  of  imputations  not 
implied  by  them,  would  be  becoming  ;  and  all 
reproachful  words  to  a  prisoner  are  to  be  avoided. 

This  method  of  opening  the  trial  is  not,  how-  This  method 
ever,  customary  with  courts-martial  in  the  Uni-  theu.&ser- 
ted  States  army  ;  but  the  address  is  deferred  un-  generally  de6-8" 
til  the  evidence  has  been  rendered  and  recorded, 
and  the  defence  made.     It  thus  appears  in  the 
form  of  a  "  reply,"  and  embodies  the  whole  subject. 

Should  the  case  to  be  investigated,  be  render- 
ed difficult  by  many  circumstances  and  facts 
connected  with  its  history,  the  judge  advocate 
might  find  it  convenient  perhaps,  in  order  that 
the  court  might  better  appreciate  the  testimony 
as  it  is  given  in,  to  make  a  statement  of  it  be- 
fore the  witnesses  are  introduced  ;  but  in  ordi- 
nary cases,  such  a  course  is  hardly  necessary  — 
and  it  is  therefore  not  usually  resorted  to. 

The  witness  is  sworn  by  the  judge  advocate,1 

1  73rd  Article  of  War.  The  law  does  not  direct  by  whom  the 
oath  shall  be  administered  ;  but  the  custom  of  courts-martial  has 
fixed  the  practice,  and  the  judge  advocate  does  so.  Before  naval 
courts-martial  the  president  is  required  and  authorized  by  the  stat- 
ute to  swear  the  witnesses.  (37th  Art.,  N.  L.,  p.  65.)  It  is  a  re- 
markable fact,  that  at  the  trial  of  Commodore  Barron,  in  1807,  the 
witnesses  were  sworn  by  the  judge  advocate  —  of  course  there  was 
no  judicial  oath  taken,  and  consequently  no  valid  evidence  heard  ! 


150  OF   THE    TRIAL   AND    ITS    INCIDENTS. 

CHAPTER     and  the  same  form  of  administering  the  oath  is 

VIL        observed  as  was  indicated  for  the  swearing  in 

witness  sworn   of  the  members.    This  form  is  to  be  observed, 

by  judge  advo- 
cate, with  the  language  prescribed  by  the  article  of 

of  the  corpo-    war,  as  a  means  intended  to  ensure  uniformity 
au^  in  the  mode  of  administering  the  oath,  particu- 

larly in  regard  to  military  witnesses  under  the 
articles  of  war.  Where  this  mode  conflicts  with 
religious  principles  or  scruples,  arising  from  pe- 
culiar sectarian  opinions  to  which  the  witness 
may  adhere,  the  ceremony  of  swearing  must  be 
performed  in  the  way  which  the  individual,  ac- 
cording to  his  faith,  may  deem  most  binding  on 
his  conscience.  Thus  a  quaker  affirms,  which 
is  provided  for  by  the  law.  Among  the  variety 
of  Christian  sects,  various  modes  are  observed. 
A  protestant  holds  up  the  right  hand,  or  kisses 
the  book.  A  catholic  is  sworn  upon  the  cross, 
which  he  kisses.  And  Mahomedan,  and  Pagan 
nations  have  their  own  peculiar  ceremonies, 
which  are  observed  as  occasion  may  require  in 
the  courts  of  civil  judicature.  No  particular 
form  is  essential,  except  for  military  witnesses, 
and  then  the  words  only  are  prescribed — the 
corporal  part  of  the  oath,  that  is  the  particular 
action,  is  left  to  custom. 

The  name,  rank,  regiment,  or  corps,  or  dis- 
tinctive condition  of  the  witness  is  recorded  by 
the  judge  advocate  at  length,  so  that  the  person 
may  by  the  description  be  easily  identified. 
Examination  of  The  examination  of  witnesses  is  always  in 
the  presence  of  every  member  of  the  court ;  and 
the  "  countenance,  looks  and  gestures  of  a  wit- 
ness," are  considered  of  importance  as  adding 
to,  or  taking  from  the  weight  of  his  testimonv. 


OP   THE    TRIAL    AND    ITS    INCIDENTS.  151 

The  manner  of  a  witness  when  delivering  his     CHAPTER 
evidence,  may  certainly  in  most  cases  indicate        vn', 
the  feeling  which  animates  him,  and  so  far  enable 
the  court  to  judge  of  his  fairness  or  disinterest- 
edness in  the  matter  at  issue. 

The  testimony  is  sometimes  given  in  the  form  Testimony 

„  .          ,  ,.  ,,      ,        .  given  in  narra 

of  a  narrative,  but  more  frequently  by  interroga-  tive,  or  by  m- 

.J  TVT  j.'         •  j.1  terrogation. 

non.  Narration  in  many  cases  is  the  most  na- 
tural and  easy  method  to  observe,  because  cir- 
cumstances and  facts  are  detailed  in  the  order 
of  time,  and  presents  to  the  mind  of  the  hearers 
a  consistent  statement — perhaps,  too,  the  con- 
nected order  of  its  recitation  may  afford  some 
means  to  judge  of  its  fidelity.  Interrogation  is 
the  more  direct  and  searching  means  of  eliciting 
evidence,  and  also  the  more  certain. 

All  evidence  received  is  recorded  in  the  order  AH  evidence  » 
in  which  it  is  given,  and  as  nearly  as  may  be  in  "S 
the  very  words  of  the  witness. 

This  last  rule  has  not  always  been  sufficiently 
attended  to,  and  its  importance  may  be  better 
appreciated  by  a  little  reflection  thereon. 

From  the  diverse  condition  of  persons  who 
are  called  upon  to  testify  before  courts-martial, 
it  sometimes  is  the  case  that  some  of  them  do 
not  properly  appreciate  or  understand  the  true 
import  and  force  of  language.  Hence  it  happens 
that  terms  or  even  phrases  are  used  by  them 
which  are  in  fact  interpreted  by  the  court  in  a 
sense  different  from  that  in  which  the  witness 
used  them,  and  this  as  a  necessary  consequence, 
leads  to  error  and  injustice.  But  by  making  a 
record  of  the  precise  words  used,  and  not  leav- 
ing to  the  interpretation  of  the  judge  advocate, 
to  express  the  meaning  of  the  witness  in  other 


152  OF    THE    TRIAL    AND    ITS    INCIDENTS. 

CHAPTER  terms, — and  thereby  presenting  to  him  and  the 
Vli-  court  the  exact  words  employed  in  the  order 
of  their  delivery,  this  danger  is  greatly  obviated 
— not  only  by  calling  up  some  reflection  in  the 
mind  of  the  witness  as  to  their  true  signification 
or  his  understanding  of  them,  but  by  presenting 
frequently  in  the  course  of  his  statement,  a  con- 
tradiction in  terms.  This  necessarily  leads  to 
explanation  and  a  proper  application  of  the  tes- 
timony. Should,  however,  the  judge  advocate 
use  his  own  language  to  express  what  he  con- 
ceives to  be  the  meaning  of  the  witness,  and 
thus  preserve  consistency  in  his  declarations — 
the  particular  language  employed  by  the  witness 
might  escape  the  memory  of  the  court,  and  in 
that  way  tend  to  the  perpetration  of  error. 
witnesses  to  be  Although  the  rule  is  fixed  that  no  witness 
should  be  present  in  court  during  the  examina- 
tion of  another  witness,  yet  it  may  happen  that 
from  opposing  statements  by  adverse  witnesses 
in  relation  to  the  same  facts,  the  court  may  at 
times  find  it  necessary  to  confront  them.  This 
of  course  is  an  exception  which  necessity  im- 
poses. 

court  may  ad-  In  case  a  witness  should  be  too  ill  to  attend 
i™£  of  a  sick  the  court,  the  latter  may  adjourn  to  the  room  or 
bedside  of  the  former  to  receive  his  evidence. 
No  part  or  number  of  the  court  can  be  delegated 
to  receive  such  evidence,  but  the  whole  court 
must  attend  for  that  purpose.  This  rule  sup- 
poses that  the  witness  to  be  examined  is  at  the 
place  or  post  where  the  court  has  been  ordered 
to  assemble. 

The  seventy-fourth  article  of  war,  provides 
for  the  reception  of  evidence,  in  cases  not  cap- 


OF    THE    TRIAL    AND    ITS    INCIDENTS.  153 

ital,  by  the  deposition  of  witnesses,  not  in  the     CHAPTER 
line  or  staff'  of  the  army.     This  deposition  may        vn- 
be  made  before  a  justice  of  the  peace,  provided 
the  prosecutor  and  the  person  accused  are  pres- 
ent at  the  taking  of  the  same,  or  are  duly  no- 
tified thereof. 

"  The  74th  article  of  the  code,  [army,]  by 
providing  under  certain  restrictions,  and  in  cases 
not  capital,  that  depositions  may  be  taken,  nega- 
tives their  allowance  in  other  cases  ;  and  the  ex- 
istence of  the  provision  sufficiently  proves  that 
without  it,  such  testimony  would  not  be  compe- 
tent, even  in  those  minor  cases." — [Attorney 
General's  opinions,  p.  763 — June,  1830.] 

The  provision  of  law  above  is  confined  to 
non-military  persons.  Members  of  the  army 
may  be  compelled  to  attend  the  court-martial ; 
but  as  there  is  no  compulsory  process  to  bring 
other  persons  as  witnesses  before  a  court-mar- 
tial, their  testimony  may  be  given  by  deposition 
before  a  justice  of  the  peace. 

The  absence  of  authority  to  compel  the  at-  Remarks  upon 
tendance  of  witnesses  not  of  the  line  or  staff  of  compulsory 

.t  ••  •  j         j  j  •        process  to  com- 

the  army,  may  be  considered  under  many  cir-  pel  attendance. 
cumstances  a  very  singular  defect,  and  often- 
times highly  prejudicial  to  public  interests,  as 
well  as  dangerous  to  individual  reputation.  The 
jealousy  which  exists  in  relation  to  the  exercise 
of  military  power,  is  founded  certainly  in  sub- 
stantial reasons,  but  where  the  administration 
of  justice  by  legally  organised  courts  is  hinder- 
ed by  the  force  of  such  sentiment,  there  can  be 
no  doubt  of  its  having  an  unnecessary  and  hurt- 
ful influence.  Why  military  persons  should  be 
debarred  of  a  right  and  privilege,  guaianteed  to 

20 


154 


OF   THE   TRIAL    AND    ITS    INCIDENTS. 


CHAPTER 
VII. 


Objectionable 

to  read  over  the 


all  other  citizens  by  the  sixth  article  of  the 
amendments  to  the  constitution,  is  not  perceived; 
and  it  is  very  clear  that  a  compulsory  method 
of  obtaining  the  testimony  of  citizens,  to  be  used 
in  military  trials,  might  easily  be  determined 
without  wounding  any  principle  of  government 
or  right  of  persons.  Trials  by  courts-martial 
involve  the  highest  interest  known  to  society,  to 
wit:  —  those  of  life  and  honor,  and  should  not 
such  be  guarded  by  every  reasonable  and  neces- 
sary  means  ? 

This  is  a  proper  subject  for  reflection,  on  the 
part  of  our  legislators,  and  one  of  great  interest 
to  every  soldier:  and  it  is  hoped  that  many 
years  may  not  be  permitted  to  pass  before  suita- 
ble notice  shall  be  taken  of  it. 

The   custom   has  prevailed,  almost  without 

x 

charges  to  wit-  exception,  of  reading  over  the  charges  to  the 
witness  previous  to  commencing  his  examina- 
tion. A  little  reflection  must  present  this  mode, 
in  many  cases,  as  being  very  objectionable  ;  and 
that,  inasmuch  as  it  presents  the  particulars,  of 
time,  place,  and  words  to  the  notice  of  the  wit- 
ness, it  instructs  him  in  the  matter  to  which  he 
has  been  called  to  testify.  The  nature  of  the 
charges,  and  the  character  or  standing  of  the 
witness,  may  very  much,  at  times,  determine 
the  propriety  of  this  course  :  and,  whereever  the 
reading  of  the  charge  may  have  the  effect  of  a 
leading  question,  it  should  be  omitted.  When 
particular  words,  alleged  to  have  been  used  by 
a  prisoner,  have  been  inserted  in  the  charge,  as 
in  cases  of  disrespect,  &c.  ;  such  words,  upon 
reading  the  charge  to  the  witness,  should  be 
omitted,  as  the  prisoner  might,  with  great  pro- 


OF    THE    TRIAL    AND    ITS    INCIDENTS.  155 

priety,  object   to  their  enunciation.      It   is,  of      CHAPTER 

course,  difficult  to  distinguish  cases  in  which        vn> 

this  mode  should  be  observed  or  omitted.    Each 

particular  case,  and  the  language  of  the  charge, 

will  indicate  the  best  way  of  proceeding  in  the 

examination.    Questions  may  be  framed  in  such 

a  form  as  to  enable  the  witness  to  narrate  all 

the   circumstances   of  the   case.     In  the  civil 

courts,  upon  criminal  prosecutions,  the  indict- 

ment is  not  read  over  to  the  witnesses,  and 

where  no  form  is  prescribed  by  law,  the  anal- 

ogy of  procedure  in  the  civil,  may  be  safely  re- 

ferred to  by  military  courts.     The  safe  rule  to  Rule  for  the  ex. 


observe  is,  that  whenever  the  reading  of  the        a      °f 


charge  does  not,  as  a  leading  question,  instruct 
the  witness  how  to  answer,  or  make  known  to 
him  the  essential  minute  facts  of  the  charge,  it 
may  be  read  to  him  ;  and,  more  particularly  so, 
if,  under  such  circumstances,  it  tends  to  shorten 
the  examination.  The  preparation  of  numerous 
written  questions  is  a  very  tedious  proceeding, 
and  it  probably  is  one  cause  why  the  charge 
has  been  read  to  the  witness  so  generally,  and 
ne  requested  to  state  at  once  all  the  knowledge 
he  may  possess  of  it.  It  is  a  convenient  method 
in  most  cases,  but  wherever  there  is  a  suspicion 
of  prejudice,  or  doubt  of  credibility,  the  safest 
mode  is  to  proceed  by  interrogation. 

Questions  are  reduced  to  writing  by  the  party  Questions 
originating  them,  and  read  aloud  by  the  judge  S 
advocate,  who  enters  them  on  the  proceedings.  posedof: 
Should  an  objection  be  made  to  a  question  on 
enunciation,  the  court  is  cleared,  and  a  majority 
of  voices  determines  whether  it  shall  be  put  or 
not.     A  question  having  been  rejected,  is  not, 


156  OF    THE    TRIAL    AND      TS    INCIDENTS. 

CHAPTER  therefore,  expunged  from  the  record,  of  which  it 
Y1I>  makes  part,  unless  by  consent  of  the  parties  be- 
fore the  court,  but  appears  on  the  record,  with 
the  decision  of  the  court.  It  sometimes  happens 
that  a  question  when  propounded  by  one  of  the 
parties,  or  a  member  of  the  court,  appears  too 
objectionable  to  be  read  in  the  hearing  of  a  wit- 
ness ;  in  such  case,  it  is  manifestly  the  duty  of 
the  judge  advocate  to  ask  to  have  the  court 
cleared,  before  it  is  announced,  and  then  state 
the  objections  to  it.  This  is  a  means  of  pre- 
venting a  witness  from  being  instructed,  or  led 
in  the  course  of  his  evidence  by  improper  ques- 
tions, though  they  are  not  permitted  to  be  an- 
swered.1 

Questions  by         A  party  before  the  court  cannot  object  to  a 
not  be  objected  question  put  by  the  court,  though  he  may  to  a 

to  by  either  /  JJ 

party.  question  put  by  .a  member  of  it,  before  the  col- 

lective opinion  of  the  court  has  been  expressed 
in  relation  to  it.  All  questions  originating  with 
members,  and  which  have  been  received,  are  re- 
corded as  "by  the  court"  but  when  made  the 
subject  of  discussion,  and  rejection,  they  are 
entered  upon  the  record  as  "by  a  member" 
The  reception  of  a  question  by  the  court,  origi- 
nating with  an  individual  member,  makes  it  a 
question  by  the  court;  but  where  rejected,  in 

1  The  form  observed  before  naval  courts  is  to  hand  the  question 
to  the  president  for  examination.  This  practice  seems  to  be  drawn 
entirely  from  the  practice  of  English  naval  courts,  where  the 
president  enjoys  and  exercises  powers  and  rights  not  conceded  in 
the  United  States  service.  There  is  no  legal  or  necessary  cause 
for  the  observance  of  such  procedure,  and  as  it  tends  to  lengthen 
the  trial,  and  to  make  wearisome  and  tedious  the  proceedings  of 
the  court,  without  indeed  fulfilling  any  beneficial  purpose,  it  is 
better  that  it  be  discontinued. 


OP    THE    TRIAL    AND    ITS    INCIDENTS.  157 

order  to  save  a  contradiction  in  the  record,  it  is     CHAPTER 
necessarily  written  down  as  by  a  member. 


When  a  witness  is  sworn,  the  party  who  calls  The  party  who 

,       ,  calls  a  witness 

him  commences  the  examination,  which  is  styled  ^^  the  ex- 

•'  amination.  Ex- 

the  examination  in  chief;  that  being  finished,  the  amination  in 

11-  i          chie'- 

opposite  party  asks  what  questions  he  may  deem 

necessary,  and  this  latter  interrogation  is  called 

,  t  . .  Cross-exaraina- 

the  cross-examination.  uon. 

A  re-examination  of  the  witness,  by  the  first  Re-examina- 
party,  follows  the  cross-examination,  upon  such 
points  as  the  latter  may  have  touched  on,  and 
then  the  court  put  such  questions  as  they  may 
deem  requisite,  to  elicit  the  whole  truth,  calling 
for  explanation  of  previous  portions  of  the  testi- 
mony, or  requiring  a  fuller  statement  of  circum- 
stances or  facts,  which  had  been  but  slightly 
referred  to.  A  court-martial  has  certainly  the 
right  to  put  questions  to  a  witness  at  any  stage 
of  the  examination,  but  such  a  course  has  many 
inconveniences,  and  frequently  confuses  the  pro- 
ceedings ;  it  perplexes  the  mind  of  the  party, 
and  may,  to  some  degree,  derange  his  pre-con- 
ceived  order  of  examination.  It  is  much  better,  Parties  to  «n- 

i  i  ,  .         ish  their  exami 

therefore,  that  the  examination  by  the  parties  nation  before 

1111  i  tne  court  puts 

should  be  completed  before  the  court  make  any  any  questions. 
interrogation ;  and  thus  it  frequently  occurs,  that 
the  necessity  of  asking  any  questions  is  obviated 
by  the  first  examinations.  Members  of  courts- 
martial  should  bear  in  mind,  that  though  the 
course  and  method  of  the  examination  by  the 
parties  may  appear  defective  and  prolix,  and, 
therefore,  fatiguing,  yet  that  every  person  has 
a  particular  mode  in  view,  and  is  proceeding  to 
results,  which,  to  those  who  merely  listen,  may 
not,  at  the  time,  seem  to  have  any  connection 


158  OF   THE    TRIAL    AND    ITS    INCIDENTS. 

CHAPTER     with  the  means ;  and  that  nothing  can  have  a 
more  depressing  effect  upon  the  mind  of  the 


party,  or  give  rise  to  more  painful  and  embar- 
rassing feelings,  than  the  abrupt  interruption  of 
his  plan,  by  any  manifestations  of  impatience  on 
the  part  of  the  court. 

Evidence  to  be       The   examination  of  a  witness   being   corn- 
read  over  to  .  ° 

witness.  pleted,  his  evidence,  if  deemed  necessary  by  the 
court,  or  if  desired  by  him,  is  read  over  previous 
to  his  leaving,  to  give  him  the  opportunity  of 
correcting  any  errors  therein.  Accordingly,  any 
remark  or  explanation,  with  such  a  view,  is  en- 
No  erasures  or  tered  on  the  proceedings  ;  but  no  erasure  or 

obliteration  of 

ioweT°rd  d  obliteration  of  what  has  been  previously  stated 
can  be  made,  as  it  is  a  matter  of  propriety  and 
necessity  that  the  reviewing  officer  should  have 
presented  to  his  notice  every  item  of  the  pro- 
ceedings, and  to  enable  him  to  judge  of  every 
thing  which  has  been  done  by  the  court,  or 
which  may  be  made  the  subject  of  remark  by 
the  parties. 

All  matters  which  have  once  been  presented 
to  the  court,  as  a  part  of  the  statements  of  a 
witness,  must  have,  or  may  have  some  opera- 
tion on  the  minds  of  the  members,  though  such 
matter  may  have  been  subsequently  amended, 
or  explained ;  it  is  but  just,  therefore,  that  the 
same  should  be  presented  to  the  observation  of 
the  revising  authority.  Immaterial  matter,  which 
has  been  offered  by  inadvertence,  might  be,  the 
parties  not  objecting,  expunged  from  the  record ; 
but  courts-martial  should  be  cautious  in  allow- 
ing this,  as  objections,  or  questions  thereon, 
might,  at  a  subsequent  period  to  the  dissolution 


OF    THE    TRIAL    AND    ITS    INCIDENTS.  159 

of  the  court,  be  raised,  and  be  productive  of  ill     CHAPTER 
consequences.  VII> 

Should   either  party  perceive,   after   having  Questions  by  B 

r        J      f  *    party  put 

concluded  his  case,  that  a  material  question  had  through  the 

'  >  *  court  after  he 

been  omitted,  he  submits  it  to  the  court,  who  ]ias  concluded 

.  ,  Uls  case. 

will  always  allow  it  to  be  put.  This  is  condu- 
cive to  the  ends  of  justice,  as  well  as  satisfac- 
tory to  the  individual  asking  it,  and  is  believed 
to  be  perfectly  in  accordance  with  the  rule  ob- 
served in  the  civil  courts. 

Reading  over  the  testimony  of  a  witness  pre-  Testimony  of 

.  ,  ,        ,  witness  not  to 

vious  to  his  leaving  the  court,  and  alter  he  has  be  read  during 
finished  his  statement,  is  a  very  useful  rule,  and  his  cross-exami 

.  -        .  nation. 

often  may  prevent  a  subsequent  perplexing  ex- 
planation. But  the  testimony  of  a  witness  should 
not  be  read  to  him  during,  or  previous  to  his 
cross-examination :  such  a  course  might  defeat 
the  very  ends  and  purposes  of  a  cross-examina- 
tion. 

The  opposing  party  to  the  one  calling  a  wit-  Opposite  party 

may  cross-ex- 

ness,  has  the  right  of  cross-examination :  and  so,  a«nme. 
should  the  prisoner,  having  cross-examined  a 
witness,  and  subsequently  call  the  same  back  to 
be  examined  for  the  defence,  it  would  be  held  to 
be  an  examination  in  chief,  and  the  right  of 
cross-examining  the  witness  could  be  claimed  by 
the  prosecutor. 

The  witnesses  called  by  the  prosecutor  having  Tho  prosecute/ 
been  examined,  and  all  the  evidence  to  substan-  inetTim5  wk- 
tiate  the  charges  submitted  to  the  court,  the  prisoner  begi™ 
prisoner  enters  upon  his  defence.     Should  it  be 
necessary  for  preparation,  the  court,  at  the  re-  court  may 
quest  of  the  prisoner,  would  grant  time  to  ena- 
ble  him  to  proceed  witli  more  certainty  or  pre- 
cision. 


160 


OF    THE    TRIAL    AND    ITS    INCIDENTS. 


CHAPTER 
VII. 

The  prosecutor 
must  produce 
all  liis  evidence 
before  the  pris- 
oner begins  his 
defence. 


Witnesses  for 
defence — how 
examined. 


Prisoner's  ad- 
dress to  the 
court. 


It  must  be  distinctly  understood,  and  observed 
in  the  conduct  of  all  military  trials,  that  the 
prosecutor  must,  during  the  prosecution,  and  be- 
fore the  prisoner  comes  on  his  defence,  produce 
all  the  evidence  he  has  to  support  the  charge. 
After  the  prosecution  has  been  closed,  which 
must  be  announced  and  entered  upon  the  record, 
no  further  proof  in  support  of  any  alleged  spe- 
cific fact  in  the  charge  can  be  received. 

The  adherence  to  this  rule  is  not  only  neces- 
sary, to  preserve  a  congruous  method  in  the  de- 
velopement  of  the  proof  for  the  prosecution,  but 
also  to  guard  against  any  advantage  being  taken 
of  the  prisoner,  after  the  method  and  means  of 
his  defence  have  been  revealed. 

Witnesses  for  the  defence  are  examined  in  the 
same  order,  as  those  presented  on  the  part  of 
the  prosecution.  The  prosecutor  cross-examines, 
and  the  prisoner  re-examines  to  the  same  extent 
allowed  to  the  prosecutor. 

The  examination  of  witnesses  being  closed, 
the  prisoner  takes  this  time  to  address  the  court, 
when,  by  argument  and  statement  of  the  facts 
as  shown  in  the  evidence,  he  presents  to  the 
court  every  consideration  which  may  tend  to 
weaken  the  force  of  the  prosecution.  The  great- 
est liberty,  consistent  with  a  strict  propriety,  es- 
pecially in  regard  to  third  persons  not  before  the 
court,  is  at  all  times  allowed  a  prisoner :  and  he 
therefore  may  impeach,  by  evidence,  the  charac- 
ter of  witnesses  brought  against  him,  and  remark 
on  their  testimony,  and  the  motives  by  which 
they  and  the  prosecutor  appear  to  have  been  ac- 
tuated. 

Yet  in  the  indulgence  of  such  a  course,  it  must 


OP   THE    TRIAL    AND    ITS    INCIDENTS.  161 

be  remembered,  that  coarse  and  insulting  Ian-  CHAPTER 
guage  cannot  be  tolerated.  The  most  vigorous 
defence  is  not  at  all  incompatible  with  refine- 
ment of  language  and  propriety  of  demeanor; 
and  an  accused  person  should  be  well  assured, 
that  so  far  from  helping  his  cause,  that  coarse  court* 
epithets  and  vulgar  imputations,  will  most  assu- 
redly operate  to  his  disadvantage.  The  court 
itself  would,  too,  feel  bound  to  interfere  and 
check  a  prisoner,  who  should  thus  forget  what 
was  due  to  himself  and  others,  and  state  to  him, 
if  necessary,  that  the  course  he  was  pursuing 
would  not  weigh  with  them,  or  operate  in  his 
favor. 

Should  either  party,  in  the  course  of  their  ex-  New  matter 
amination  of  the  witnesses,  or  by  bringing  for-  ESyby  Opp«iite 
ward  new  ones  for  that  purpose,  introduce  new  p 
matter,  the  opposite  one  has  the  right  of  calling 
other  witnesses  to  rebut  such  new  matter.     A 
prosecutor  cannot  be  allowed  to  bring  forward 
evidence  to  rebut  what  has  been  elicited  by  his 
own  cross-examination,  but  must  be  confined  to 
new  matter  introduced  by  the  prisoner,  and  sup- 
ported by  the  examination  in  chief  of  the  pris- 
oner. 

The  address  of  the  prisoner,  prepared  subse-  Prisoner's  ad- 
quent  to  the  reception  of  all  the  testimony,  is  real'  y 
read  by  the  prisoner,  or  if  any  cause  should 
prevent  his  so  doing,  it  may  be,  at  the  request 
of  the  prisoner,  read  by  his  counsel,  the  judge 
advocate,  or  a  military  friend. 

The  restrictions  against  professional  counsel 

in  this  respect,  is  not,  in  the  army  of  the  United 

States,  urged  so  tenaciously,  as  seems  to  be  the 

case  in  trials  before  courts-martial  in  the  British 

21 


162  OF   THE    TRIAL   AND    ITS    INCIDENTS. 

CHAPTER  army  ;  and  in  point  of  propriety,  the  indulgence 
vn-  granted  to  prisoners,  on  this  part  of  their  trial, 
may  be  said  to  be  supported  by  good  sense. 
Lawyers,  technically  as  such,  are  not  recognized 
by  courts-martial,  though  permitted  to  appear  as 
a  friend,  to  assist  the  prisoner  with  advice  in  the 
conduct  of  his  defence ;  and  therefore  it  is,  that 
interruptions  by  nice  distinctions  or  pleadings, 
orally,  are  not  permitted.  Such  pleadings,  too, 
would  be  entirely  out  of  place,  and  tend  to  no 
good  result,  but  on  the  contrary  would  embar- 
rass by  delays  the  business  of  the  court.  These 
objections,  which  are  substantial,  when  applied 
to  the  business  of  the  trial  merely,  ought  not  to 
have  any  weight,  in  considering  the  propriety  of 
permitting  the  counsel  to  read  the  address — as 
it  is  very  certain  that  such  privilege  cannot  be 
urged  as  precedent  to  procure  other  indulgence, 
nor  affect  in  any  way,  prejudical  to  the  service, 
the  proceedings  of  the  court. 
judge  Advo-  The  judge  advocate,  or  the  prosecutor,  can  al- 

cate's  right  to 

repty-  ways  claim  the  right  of  replying  to  the  defence 

of  the  prisoner,  and  the  court  will  generally 
grant  a  reasonable  time  for  the  preparation  of  it. 
When  the  reply  has  been  read  the  trial  is  closed. 
Should  the  prisoner  have  examined  witnesses  to 
matter  not  touched  upon  in  the  course  of  the 
prosecution;  or  should  he  have  reflected  upon 
the  credibility  of  the  prosecutor's  evidence,  the 

when  the  pros-  prosecutor  is  allowed  to  examine  witnesses  to 

ecutor  is  al-        p 

lowed  to  exam-  the  new  matter,  and  for  the  re-establishment  of 

me  other  wit- 
nesses touching  the  character  of  his  witnesses ;  and  the  court 

new  matter. 

will  be  particular  to  confine  him,  in  his  further 
examination,  to  the  new  matter  introduced,  as 
he  cannot  be  allowed  to  examine  on  any  points, 


OF   THE   TRIAL    AND    ITS    INCIDENTS.  163 

which  in  their  nature  he  might  have  foreseen     CHAPTER 
previous  to  the  defence  of  the  prisoner. 


What  is  new  matter  must  be  judged  of  by  what  IB  new 

*    matter. 

the  court,  and  the  facts  of  the  testimony  will 
enable  them  to  judge  correctly.  For  instance  a 
prisoner  might  allege  and  produce  evidence  to 
show  that  he  was  compelled  to  do  a  certain  act 
by  others,  or  that  he  omitted  the  performance  of 
some  duty  from  unavoidable  accident  or  severe 
disease.  This  defence,  as  it  could  not  have 
been  foreseen  by  the  prosecutor,  or  at  least  it 
ought  not  to  be  assumed,  that  he  might  have 
anticipated  it,  would  admit  of  the  examination 
of  witnesses  to  counteract  it,  or  the  production 
of  other  legal  evidence,  as  might  be  necessary. 

Cross-examination  of  such  new  witnesses,  ac- 
cording  to  the  extent  of  the  examination  in 
chief,  is  permitted  to  the  prisoner,  to  whom, 
when  witnesses  are  introduced  in  the  reply,  a 
rejoinder  is  allowed ;  but  he  is  not  permitted  to 
call  other  witnesses,  except  to  fortify  the  char- 
acter or  credit  of  such  of  his  witnesses,  as  may 
have  been  impeached  by  the  prosecutor  in  his 
reply.  To  an  extent,  determined  by  the  argu- 
ments of  the  prisoner  in  his  rejoinder,  is  the 
prosecutor  allowed  a  second  reply — which  is 
called  a  sur-rejoinder. 

But  these  various  addresses  to  the  court,  are  Such 
very  seldom  called  for,  and  are  quite  unusual ;  seldom  made- 
though  cases  may  occur  in  which   the  parties 
deem  it  advantageous  to  claim  and  exercise  the 
right. 

Pleas  in  bar  of  judgment  are  seldom  or  ever  pi^  ^  ^ 
made — all  such  matter  would  be  embodied  in 
the   defence.     The  pleas   and   excuses   which 


164  OP   THE    TRIAL    AND    ITS    INCIDENTS. 

CHAPTER     protect  the  committer  of  a  forbidden  act  from 
VIL        punishment,  are  confined  to  the  want  of,  or  the 

defect  of,  will. 

Lunatics.  Mis-  Lunatics  are  not  criminally  chargeable  for 
chance'  £no-  their  acts,  while  laboring  under  such  incapacity. 
ukfiii  point  of  So  misfortune,  or  chance,  and  ignorance  in  some 

law  no  defence.  .1  i         /»  i  /• 

cases,  may  excuse  the  unlawful  act  of  a  man. 
But  a  mistake  as  to  a  point  of  law,  is  no  sort  of 
defence.  And  ignorance  of  the  military  law,  or 
the  rules  and  regulations,  which  it  is  the  duty 
of  military  men  to  be  acquainted  with,  is  not  ad- 
missible as  an  excuse  for  the  non-observance  of 
them. 
ignorance,  The  ignorance  which  is  spoken  of  above  as 

when  an  ex-  .  .  ,  .  ,    _ 

cuse.  being  at  times  an  excuse  for  the  act,  is  a  defect 

of  the  will — as  where  a  man  intending  to  do  a 
lawful  act,  does  that  which  is  unlawful,  as  for 
instance,  where  one  intending  to  kill  a  robber  or 
house-breaker,  kills  an  innocent  person — such 
an  act  would  not  be  criminal. 

compulsion,  or  Another  plea,  and  which  is  one  of  importance 
to  be  understood,  as  it  may  frequently  in  mili- 
tary trials  be  brought  in  question,  is  that  of  com- 
pulsion or  inevitable  necessity.  "  These  are  a 
constraint  upon  the  will,  whereby  a  man  is 
urged  to  do  that  which  his  judgment  disap- 
proves ;  and  which  it  is  presumed  his  will  (if 
left  to  itself)  would  reject.  As  punishments, 
therefore,  are  only  inflicted  for  the  abuse  of  that 
free  will,  which  God  has  given  to  man,  it  is 
highly  just  and  equitable  that  a  man  should  be 
excused  for  those  acts  which  are  done  through 
unavoidable  force  and  compulsion."1 

This  plea  when  founded  upon  the  obligation 

'  4  Black.  Com.,  26. 


OP   THE    TRIAL    AND    ITS    INCIDENTS.  165 


of  subjection  to  military  authority  may  present 
very  difficult  points  to  determine ;  for  it  is  a  nice  VII> 
question  still,  of  how  far  a  soldier  may  plead 
justification,  for  an  act  done  by  the  order  of  a 
superior  officer,  which  order  may  prove  to  be  il- 
legal; or  be  excusable  for  hesitating  to  yield 
obedience  to  such  order,  upon  the  presumption, 
that  it  is  contrary  to  law.  These  questions, 
however,  when  presented  to  courts-martial,  are 
to  be  considered  in  relation  to  military  discipline, 
and  not  always  referred  to  as  a  consideration  of 
personal  rights;  and  therefore,  courts-martial 
would  probably  extend  the  principle  of  excul- 
pation under  the  plea.  Hesitancy  in  the  ex-  Hesitancy— 
ecution  of  a  military  order  is  clearly,  under  most  S^?61 
circumstances,  a  serious  offence,  and  would  sub- 
ject one  to  severe  penalties ;  but  actual  dis- 
obedience is  a  crime  which  the  law  has  stigma- 
tized as  of  the  highest  degree,  and  against  which 
denounced  the  extreme  punishment  of  death; 
and  accordingly,  an  offence  of  this  nature,  from 
the  great  danger  which  might  result  from  it, 
would  be  very  nicely  scrutinized  by  courts-mar- 
tial ere  a  justification  would  be  admitted  upon 
the  ground  that  there  was  no  lawful  authority 
for  the  command  given. 

The  principle  of  conduct  is,  that  illegal  orders  mgal  ordere 
are  not  obligatory.1  This  must  appear  as  a  con- 
sequence to  the  purposes  of  military  service, 
and  that  all  orders  are  given  in  furtherance  of 
the  objects  contemplated  by  the  laws,  creating 
and  governing  the  military  establishment.  But 
the  difficulty  of  distinguishing,  at  times,  whether 
an  order  is  illegal  or  otherwise,  and  the  degree 

1  9th  Article  of  War. 


166 


CHAPTER 
VII. 


Compulsion  by 
menaces— fear 
of  death. 


O*'   THE    TRIAL    AND    ITS    INCIDENTS. 

of  illegality  which  characterizes  it,  must  make 
a  decision  on  this  subject  always  doubtful  and 
dangerous,  when  a  refusal  to  act  is  to  follow  it. 
To  disobey  an  unlawful  command  of  a  superior 
is  undoubtedly  lawful ;  but  this  must  be  under- 
stood, for  its  true  and  practical  intent,  to  be 
limited  to  such  orders  as  are  plainly  and  pal- 
pably in  violation  of  the  well  known  customs  of 
the  army  or  the  laws  of  the  country,  and  not  in 
cases  in  which  the  question  of  legality  is  merely 
doubtful  or  undecided.  In  every  case  then  in 
which  an  order  is  not  clearly  in  derogation  of 
some  right  or  obligation  created  by  law,  the 
commands  of  a  superior  must  meet  with  unhesi- 
tating and  instant  obedience.  The  necessity  of 
military  obedience  is  so  apparent,  that  in  cases 
in  which  the  question  of  right  might  be  brought 
for  adjudication  before  the  ordinary  courts  of 
law,  it  cannot  be  supposed  that  the  latter  would 
hold  a  soldier  very  strictly  responsible  for  an  act 
resulting  from  obedience  to  an  order  which  was 
"  not  in  itself  so  glaringly  opposed  to  all  law,  as 
to  be  apparent  without  reflection  or  considera- 
tion."1 

The  particular  cases,  in  which  disobedience 
may  be  justified  on  the  plea  of  unlawfulness  of 
command,  is  of  difficult  ascertainment,  and  musl 
be  considered  and  judged  of  in  connection  with 
the  necessity  of  military  obedience. 

There  is  also  a  species  of  compulsion  or  ne- 
cessity which  arises  from  "  threats  or  menaces, 
and  which  induce  a  fear  of  death,  or  other  bo- 
dily harm,  and  which  take  away,  for  that  rea- 
son, the  guilt  of  many  crimes  and  misdemean- 

i  Simmons  on  Courts-Martial,  207. 


OP    THE    TRIAL    AND    ITS    INCIDENTS.  167 

ors.m  This  sort  of  compulsion  may  be  pleaded 
in  cases  of  mutiny  and  rebellion  by  soldiers ; 
but  it  must  be  understood  that  the  fear  which 
induces  to  such  acts,  must  be  just  and  well 
grounded,  and  not  proceed  from  a  too  easily 
alarmed  imagination;  and  this  force  and  fear 
must  continue  too,  all  the  time  the  party  re- 
mains with  the  mutineers.  The  cases  showing 
the  degree  of  compulsion  which  may  excuse 
criminal  acts,  cannot  of  course  be  denned,  but 
the  law  is  certain  in  its  principle  of  judgment, 
and  while  a  strict  regard  from  motives  of  policy 
and  necessity  is  expected  from  the  soldier  to 
military  commands,  it  sets  a  limit  to  that  ob- 
servance of  them,  which  runs  into  the  extremes 
of  a  blind  obedience,  to  the  great  peril  of  the  in- 
dividual, and  the  state.2 

1  4  Black.  Com.,  29- 

2  Captain  Hough,  at  p.  364,  gives  a  case  in  illustration  of  this 
subject,  which  is  also  quoted  by  Captain  Simmons,  at  p.  209,  as 
follows: — "In  1813  a  sergeant  (a  German)  of  H.  M.  60th  regi- 
ment of  foot,  who  had  originally  deserted  from  the  French,  en- 
tered that  regiment  by  a  voluntary  enlistment.     On  the  advance 
of  the  army,  under  the  Duke  of  Wellington,  into  Spain,  he  was 
taken  prisoner  by  the  French.     To  save  his  life,  forfeited  by  the 
act  of  desertion,  he  entered  into  the  corps  des  etrangers,  set  apart 
in  the  French  service  for  such  men,  as  an  inducement  to  them  to 
return  to  it.     At  the  battle  of  Vittoria,  he  was  again  taken  pris- 
oner by  the  English,  and  a  general  court-martial  was  ordered  to 
try  him  for  desertion.     The  first  sentence  acquitted  him  of  the  act 
of  desertion,  there  being  the  powerful  inducement  to  the  act,  that 
of  saving  his  life  ;  but  the  sentence  was  revised,  and  it  is  stated 
that  on  revision,  he  was  sentenced  to  suffer  death,  and  was  after- 
wards shot  in  the  presence  of  that  division  of  the  army  to  which 
he  belonged.     I  also  understand  that  it  was  intimated  to  the  above 
court  that  the  excuse  pleaded  by  the  prisoner  was  inadmissible, 
as  he  should  have  preferred  death  rather  than  to  have  entered  the 
service  of  the  enemy." 

In  the  above  case  there  seems  to  be  some  confusion  in  the  state- 
ment of  the  facts.     If  the  prisoner  was  tried  for  desertion,  it  is 


168 


OF    THE    TRIAL    AND    ITS    INCIDENTS. 


CHAPTER 
VII. 


an  excuse. 


Among  the  decided  and  indisputable  pleas  of 
excuse,  is  that  of  insanity  ;  which,  of  course,  by 

insanity.  rendering  the  unfortunate  person  irresponsible, 
remits  all  punishment.  But  if  the  lunatic  has 
intervals  of  reason,  sufficient  to  permit  him  to 
distinguish  the  moral  bearing  of  his  actions,  and 
such  powers  of  intellect  as  to  enable  him  to  re- 
strain his  passions,  by  which  he  was  excited  to 
crime,  he  must  be  held  to  answer  for  his  beha- 
viour during  such  intervals. 

Drunkenness         Drunkenness,  or  intoxication,  is  a  species  of 

not  considered  .      .  A 

by  the  law  as  madness  ;  but  as  it  is  produced  by  the  voluntary 
act  of  the  person,  it  cannot  be  held  to  excuse 
criminal  acts.  Indeed,  the  law,  strictly  speak- 
ing, considers  it  rather  as  an  aggravation  of  the 
offence.  The  necessity  of  considering  intoxica- 
tion as  no  excuse,  arises  from  the  ease  with 
which  such  condition  may  be  assumed  or  feigned, 
and  not  to  permit  one  crime  to  be  pleaded  as  a 
privilege  or  justification  for  another. 

Thus  it  is  seen,  that  according  to  the  princi- 
ples of  legal  judgment,  no  palliation  of  an  of- 
fence is  admitted  on  account  of  intoxication ; 
and  yet,  from  the  habits  of  soldiers,  and  the 
character  of  offences  most  frequently  perpe- 

crear  that  the  plea  of  the  fear  of  death  had  induced  him  to  enter 
or  reenter  the  French  service,  was  no  excuse  for  the  act,  and  the 
finding  and  sentence  of  the  court  were  legal ;  but  if  the  prisoner 
was  arraigned  for  entering  the  enemy's  service,  considered  (con- 
structively) as  an  act  of  desertion,  it  is  manifest  that  his  plea 
ought  to  have  been  received,  for  his  conduct  in  that  particular  had 
been  induced  pro  timorc  mortis,  and  he  was  therefore  excusable. 

During  the  war  of  1812,  many  of  our  seamen  were  similarly 
situated  by  impressment  in  the  British  navy — which,  if  to  serve 
there  against  their  country,  had  been  a  crime  by  the  laws  of  the 
land,  making  them  amenable  to  trial  and  punishment,  would  have 
been  a  legal  justification. 


OP    THE    TRIAL    AND    ITS    INCIDENTS.  169 

trated  by  them,  it  is  difficult,  not  to  consider     CHAPTER 
such   maxims   as   opposed  to   humane   reason.        YI1> 
Where  there  is  no  certain,  or  apparent  predis- 
position to  commit  the  offence  charged  against 
a  prisoner,  and  where  its  enormity  is  not  such 
as  to  shock  the  sentiment  of  humanity,  courts- 
martial  do  at  times  consider  this  excuse  as  hav- 
ing some  right  to  consideration  ;  though  it  must  be 
remembered,  that  it  is  only  received  in  extenua- 
tion, (if  at  all,)  of  the  smaller  and  lighter  offences. 

Voluntary  drunkenness  is  a  vice,  which  brings  Evils  of  drunk- 
in  its  train  countless  evils.     In  military  life,  as 


in  the  civil  walks  of  society,  crime  follows  its 
footsteps,  and  introduces  disorder  and  insub- 
ordination, which  require  all  the  severity  of  law 
to  check  or  suppress.  There  are,  indeed,  few 
offences  in  the  army,  in  any  degree  aggravated, 
which  do  not  proceed  from  the  indulgence  of 
this  vice  ;  and  expences  and  inefficiency  are 
thereby  entailed  upon  military  commands,  to  the 
great  detriment  of  the  public  service. 

It  is  gratifying  to  know,  however,  that  a  happy  Habits  of  the 
change  in  regard  to  this  habit,  has  been  gradu-  Undergone  aery 
ally  making  way  among  the  private  soldiery,  change! 
within  a  few  years  past,  and  it  is  hoped,  that 
sufficient  inducement  may  be  offered  to  stimu- 
late the   weak   against  the   approaches   of  so 
dreadful  an  enemy,  and  reclaim  the  fallen  from 
its  fearful  dominion. 

If  the  healthful  example,  offered  by  the  offi-  Healthful  ex- 

ample of  sobrio 
cers  of  the  army,  to  the  men  subiect  to  their  ty  m  commis- 

J  .  sioned  officers. 

control,  may  be,  in  relation  to  this  subject, 
deemed  a  means  of  preventing  the  introduction 
of  and  indulgence  in  the  vice  spoken  of,  there 
is  then,  from  this  cause,  much  to  rely  upon. 

22 


170 


OP   THE    TRIAL    AND    ITS    INCIDENTS. 


CHAPTER 
VII. 


The  severe  judgments  which  courts-martial  are 
disposed  to  pronounce  upon  delinquencies  of 
this  nature  in  the  case  of  commissioned  officers, 
have  restrained  young  men  from  excess,  and 
preserved  them  from  the  moral  impurity  of  such 
offences.  But  this  is  not  the  only  influence 
which  has  been  active  for  their  preservation. 
A  high  intelligence,  a  fixed  standard  of  morals, 
derived  from  and  impressed  by  the  judicious 
cultivation  of  their  faculties  during  the  proba- 
tionary term  of  study  at  the  military  school  at 
West  Point,  exert  a  paramount  power  over 
them  for  the  conservation  of  all  the  proprieties 
which  should  attach  to  their  condition  in  life  as 
citizens  and  soldiers. 
The  importance  It  is,  emphatically,  to  the  military  academy. 

and  advantages       .  .,,.  .,          ~    .  . 

of  the  military  since  the  period  when  it  attained  sumcient  vigor 

academy. 

of  administration  and  means  of  instruction,  to 
supply  the  annual  vacancies  in  the  several  regi- 
ments and  corps  of  the  army,  that  the  high  qual- 
ities in  morals  and  in  mind,  which  have  distin- 
guished the  body  of  military  officers  must  be 
ascribed. 

With  benefits  flowing  from  an  institution  of 
learning,  not  only  estimable  in  the  profession  for 
which  its  pupils  are  trained,  but  eminently  ad- 
vantageous to  the  community  at  large,  by  the 
diffusion  of  scientific  knowledge  so  important  in 
the  practical  labors  of  our  country,  it  is  remark- 
able that  such  vehement  opposition  as  has  at 
times,  been  manifested  to  its  continuance,  should 
have  been  made.  Yet  political  proscription 
and  individual  resentments  have  been  enabled, 
by  specious,  though  unsubstantial  imputations 

i  Since  the  year  1816. 


OP   THE   TRIAL    AND    ITS    INCIDENTS.  171 

against  the  integrity  of  its  government,  to  agitate     CHAPTER 
the  question  of  its  abolition,  and  which  required        Yn 
all  the  firmness  and  intelligence  of  disinterest- 
ed and  patriotic  legislators  to  resist  and  over- 
come1 


CHAPTER  VIII. 


FINDING. 
CHAPTER 


vm  THE  charge  having  been  investigated  by  the 

Decision  of  the  production  and  examination  of  all  the  evidence, 
court.  which  the  parties  have  deemed  necessary,  it  is 

now  the  business  of  the  court  to  decide  upor 
the  question  of  guilt. 

Every  aiiega-  ^  *s  necessary,  however,  before  proceeding  to 
tn^s  s^aSe  °f  ^ie  trial,  that  each  and  every  alle- 
gation  made  against  the  prisoner  should  be  fully 
inquired  into  ;  and  this  too  entirely  without  re- 
ference to  the  proof  of  any  one  item,  which 
might  even  call  for  the  uttermost  sentence 
which  a  court-martial  can  award,  either  against 
the  life,  or  the  commission  of  the  offender  :  — 
and,  so  too,  must  a  distinct  judgment  be  pro- 
nounced upon  every  specification  adduced  in 
support  of  the  charge. 

It  is  not,  therefore,  sufficient  that,  upon  the 
finding  of  guilt  of  the  more  aggravated  portions 
of  the  accusation,  the  court  should  rest  satisfied 
with  such  proof,  and  omit  further  investigation 
of  the  remaining  portions,  but  will  continue  its 
inquiries  until  the  whole  of  the  accusatory  mat- 
ter has  been  sifted.  This  is  apparent,  if  it  is 
considered  that  courts-martial  in  their  judgments 
sometimes  commit  errors,  in  regard  to  evidence 
or  the  just  consideration  of  the  offence,  techni- 
cally considered,  under  the  specification  of  facts, 


FINDING.  173 

and,  therefore,  an  omission  on  their  part  to  fully     CHAPTER 
examine  and  decide  upon  the  entire  charge,  or  _ 
charges,  and  specifications,  would  be  productive 
of  delays,  and  hindrances  to  the  service,  as  well 
as,  in  many  cases,  be  highly  prejudicial  to  the 
party  tried,  as  tending  to  prevent  a  declaration 
of  his  innocence  of  the  offences  imputed,  and 
thus  freeing  him  from  the  censure  and  partial 
judgments  of  the  public. 

Every  member  should  fully  satisfy  himself  of  copy  of  pro- 
the  extent  and  value  of  the  testimony  on  record ;  thl  u 
and,  for  this  purpose,  a  fair  copy  of  the  proceed- 
ings is  laid  upon  the  table,  or  read  over  by  the 
judge  advocate,  for  the  convenience  of  reference, 
and  to  make  certain,  while  the  subject  or  partic- 
ulars of  the  evidence  is  still  fresh  in  the  minds  of 
the  members,  that  such  copy  is  a  faithful  tran- 
script of  the  same.  This  is  of  importance  where 
the  case  is  intricate,  or  the  testimony  volumi- 
nous ;  and  it  is  also  a  very  useful  practice  for  the 
judge  advocate,  in  such  cases,  to  prepare  an  in- 
dex, or  short  notes  of  the  evidence,  in  order  that 
reference  to  the  record  may  be  made  more  easy. 

It  is  hardly  necessary  to  observe,  that  the  de-  calmness  in  the 
liberations  of  the  court  for  the  object  of  final  de- 
cision,  should  be  characterized  by  perfect  calm- 
ness of  manner  and  conversation ;  and  that  each 
member  should  endeavor  to  dispossess  his  mind 
of  any  prepossessions  or  prejudices  which  may 
lurk  therein,  so  as  to  approach  the  question 
about  to  be  submitted  for  his  determination, 
with  perfect  indifference  or  impartiality. 

Patience  of  labor  in  the  investigation,  and 
caution  of  deliberation  in  the  comparison  and 
weighing  of  circumstances,  are  essential  qualities 


174 


FINDING. 


CHAPTER 
VIII. 


Court  may  re- 
call witnesses. 


Discussion  re- 
commended. 


in  the  character  of  a  judge, — as  important  in  the 
search  for  truth,  as  integrity  of  heart  for  the  de- 
claration of  it.  High  and  responsible  is  such  a 
position,  and  the  due  appreciation  of  it,  while  it 
evinces  a  vital  honesty  in  the  bosom  of  the  indi- 
vidual, is  the  only  sure  guaranty  for  the  becom- 
ing administration  of  justice. 

It  is  perfectly  competent  for  the  court,  at  this 
period  of  their  proceedings,  to  call  back  a  wit- 
ness for  the  purpose  of  asking  any  particular 
question  thought  necessary ;  but  the  parties 
must  be  present  during  such  further  examina- 
tion. Indeed,  before  the  finding,  the  court  can 
recall  a  witness  at  any  time. 

As  has  been  observed  above,  it  is  necessary 
for  courts-martial  to  exhaust  the  whole  charges 

o 

which  come  before  them,  by  expressly  convict- 
ing or  acquitting  the  prisoner  upon  each  allega- 
tion made  against  him ;  and  it  often  happens 
that  there  is  a  great  contrariety  of  opinion  as 
regards  the  application  of  the  evidence  to  the 
several  points,  and  the  degree  of  culpability  of 
which  the  prisoner  is  to  be  found  guilty.  Grow- 
ing out  of  this  cause,  although  it  has  been  ob- 
jected to  by  some,  yet  it  is  considered  a  good 
practice  for  the  members  to  indulge  in  a  candid 
conversation  upon  the  true  meaning,  or  import, 
of  the  evidence  recorded,  and  thus  enable  every 
member  to  hear  and  understand  the  arguments, 
in  favor  of,  or  against  giving  it  weight  in  their 
decision.  This  course  is  considered  of  great 
propriety,  and  affords  an  opportunity  of  correct- 
ing, by  the  reasoning  or  observation  of  the  ex- 
perienced members,  any  hasty  or  erroneous  opin- 
ions which  may  have  been  formed  by  the  young- 


FINDING.  175 

er  part  of  the  court.  It  certainly  should  not  be  CHAPTER 
considered  as  dictating  to,  or  improperly  influ-  vm> 
encing  one  portion  of  the  members  by  the  opin- 
ions of  the  other ;  nor,  when  the  legal  rule,  that 
the  younger  members  shall  vote  first  is  consid- 
ered, should  it  be  supposed  that  the  purpose  of 
the  rule  is  destroyed  by  such  conversation ;  be- 
cause, in  the  development  of  the  views  of  the 
individual  members,  the  power  of  truth  and 
reason  must  be  supposed  to  operate  equally 
upon  all.  Indeed,  from  the  nature  of  the  de- 
liberation under  consideration,  there  must  be,  to 
some  extent,  an  interchange  of  opinion,  by  refer- 
ence to  one  another  for  the  ascertainment  and 
correction  of  specific  facts ;  and  the  prescription 
of  the  law,  by  which  the  vote  of  the  junior 
member  is  directed  to  be  first  taken,  can  hardly 
be  supposed  to  have  been  intended  to  shut  out 
all  the  aids  of  open  discussion,  and  to  compel 
the  members  to  seek  their  opinions  under  the 
veil  of  mute  reflection. 

Mr.  Tytler,  in  his  essay  on  military  law,  ex-  opinions  c 
presses  himself  in  one  part  of  his  work  to  the  Mr-  Tytlei< 
same  effect.     "  Where  there  are,"  says  he,  "  dis- 
tinct and  separate  charges  or  articles  of  accusa- 
tion, the  president  and  members  of  the  court 
reason  and  deliberate  separately  on  each  charge ; 
candidly  discussing  in  a  free  and  open  conversa- 
tion, the  import  of  the  evidence,  and  allowing  its 
full  weight  to  every  argument  or  presumption  in 
favor  of  the  prisoner."1 

In  another  part  of  the  same  work,2  when 
speaking  of  the  advantages  of  the  mode  of  trial 
by  court-martial,  the  writer  says,  "In  the  sen- 

i  Page  163.  *  Page  80. 


176  FINDING. 

CHAPTER     tences  of  courts-martial,  no  concession  of  the 
YIII>        right  of  private  judgment  is  necessary.     All  the 


members  of  the  court  have  their  unbiassed  judi- 
cative  power ;  and  even  the  influence  of  opinion 
is  guarded  against  as  far  as  possible,  by  the 
order  in  which  the  opinions  and  votes  of  the 
members  are  given:  the  youngest  member  of 
the  court  being  required  to  give  his  opinion  first, 
and  the  rest  following  in  progressive  seniority 
up  to  the  president,  who  votes  last." 
inconsistency  This  latter  view  is  somewhat  inconsistent 

of  the  opinions. 

with  the  previous  one  quoted,  and  might  tend 
to  confuse  and  make  unsettled  the  practice  of 
courts-martial  on  this  point.  But  the  opinions 
of  other  writers  advocate  the  practice  recom- 
Propriety  of  mended — and  Major  (now  General)  Vans  Ken- 
p3Sby  Van's  nedy  decidedly  approves  of  it  in  his  remarks  on 
courts-martial.  In  treating  this  portion  of  his 
subject,  he  says — "Did,  indeed,  'the  president 
and  members  of  the  court  (as  recommended  by 
Tytler)  reason  and  deliberate  separately  on  each 
charge,  candidly  discussing  in  a  free  and  open 
conversation  the  import  of  the  evidence,  and  al- 
lowing its  full  weight  to  every  argument  or  pre- 
sumption in  favor  of  the  prisoner,'  it  would  con- 
tribute greatly  both  to  the  unanimity  and  correct- 
ness of  the  verdict.  But  courts-martial  are 
averse  to  such  discussions,  as  they  think  that 
they  must  tend  to  bias  and  influence  the  opin- 
ions of  the  members,  and  thus  render  their  votes 
not  the  conscientious  dictates  of  their  own  judg- 
ments. This,  however,  is  refining  too  much,  and 
so  far  from  there  being  any  impropriety  in  such 
discussions,  they  would  on  the  contrary,  ma- 


FINDING.  177 

terially  assist  in  the  due  administration  of  jus-     CHAPTER 
tice."1  vm- 


The  court  having  had  sufficient  time  for  a  re-  Judge  advocate 

,  .  i  .  reads  the  spe- 

examination  of  the  evidence,  if  necessary,  and  cificatkns  and 

,  .         charge,  and 

for  deliberation,  the  president,  having  ascertain-  takes  the  vote*. 
ed  that  every  member  is  ready  to  give  his  opin- 
ion, signifies  to  the  judge  advocate  to  proceed. 
The  latter  then  reads  in  consecutive  order  the 
specifications  to  each  charge,  and  addresses  each 
member,  beginning  with  the  youngest,2  "  From 
the  evidence  in  the  matter  now  before  you,  how 
say  you  of  the  specification,  or  charge — is  the 
prisoner  guilty  or  not  guilty  ?"  The  vote  upon 
each  specification  of  the  charge  having  been 
given  and  recorded,  the  opinion  upon  the  charge 
is  then  given — and  so  on  in  succession  for  all  the 
specifications  and  charges,  which  have  been  the 
subject  of  investigation. 

As  the  vote  of  each  member  is  given,  the  Judge  advocate 

.  .  retains  the  vote 

judge  advocate  makes  a  minute  of  the  same,  of  every  mem- 
which  should  be  carefully  retained  and  kept  by  minute  of  the 
him,  to  meet  the  possible  contingency  of  pro- 
ceedings in  the  common  law  courts,  touching  the 
legality  of  the  acts  of  the  court-martial.  I  know 
that  this  is  frequently  objected  to  by  members 
of  courts-martial,  upon  the  ground  that  it  puts 
at  hazard  to  some  extent  the  disclosure  of  their 
opinions.  This,  as  a  mere  fact,  is  undoubtedly 
true  ;  but  as  there  is  a  provision  of  law  for  the 
revelation  of  the  "  vote  or  opinion  of  any  parti- 
cular member  of  the  court-martial,"  embodied 
in  the  oath,  there  seems  a  necessity,  at  least  a 
propriety,  for  certainty,  and  consequent  safety  of 
other  members  of  the  court,  that  the  written 

i  Page  146.  »  Article  of  War,  72. 

23 


178 


FINDING. 


CHAPTER 
VIII. 


Majority  of 
votes  deter- 
mines the  opin- 
ion, except  in 
certain  cases. 


Two-thirds  are 
required  to  sen- 
tence capitally ; 
and  the  record 
must  state  that 
two-thirds  vo- 
ted the  punish- 
ment. 


opinion  of  the  members,  as  delivered  at  the  time 
of 'trial,  should  be  preserved.  For  what  pur- 
pose then  was  that  provision  introduced,  if  it 
were  not  for  the  exoneration  of  the  individuals 
composing  the  court,  who  did  not  vote  in  accord- 
ance with  the  judgment  of  the  court ;  or  how 
could  such  facts  be  ascertained  from  the  vague 
and  uncertain  recollections  of  men  after  a  con- 
siderable lapse  of  time,  influenced,  too,  as  might 
be  the  case,  by  a  powerful  interest  to  keep  them 
secret  ?  No — the  judge  advocate  is  the  proper 
depository  of  such  secrets,  and  the  written  notes, 
made  at  the  time,  the  only  sure  defence  against 
uncertainty  and  error. 

The  majority  of  voices  determines  the  convic- 
tion or  acquittal  of  the  prisoner,  except  in  such 
cases,  as  where  (upon  conviction)  the  law  ab- 
solutely, and  without  any  discretion  in  the  court, 
condemns  him  to  suffer  death.  Such,  for  in- 
stance, as  is  set  forth  in  the  fifty-fifth  article  of 
war,  for  forcing  a  safe-guard  in  foreign  parts. 
Now  as  the  eighty-seventh  article  of  war  ex- 
pressly limits  the  power  of  general  courts-mar- 
tial, to  adjudge  any  person  to  suffer  death,  "  but 
by  the  concurrence  of  two-thirds  of  the  mem- 
bers," nor  except  in  the  cases  mentioned  in  the 
articles  of  war,  it  follows,  that  as  in  the  instance 
referred  to,  of  forcing  a  safe-guard  in  foreign 
parts,  and  in  similar  cases,  no  conviction  could 
be  declared  without  a  vote  of  two-thirds  of  the 
members  to  that  effect.  In  all  such  cases,  and 
in  others  where  the  prisoner  is  sentenced  to 
suffer  death,  the  record  must  explicitly  state  that 
two-thirds  of  the  court  concurred  therein. 

This  declaration  of  the  record  that  two-thirds 


FINDING.  179 


of  the  court  voted  capital  punishment,  is  impor-     CHAPTER 
tant  to  show,  that  in  the  decision  of  so  solemn        vm' 
a  question  as  that  of  life  and  death,  all  the  re- 
quirements and  restrictions  of  the  law  were  mi- 


nutely  observed.  asrfd  to  the 

•j  sentence. 

In  cases  where  a  majority,  or  the  entire  court 


i  .  ..  111  •/.          •  determines 

condemn  a  prisoner,  it  would  be  a  manifest  im-  the  opinion,  the 


propriety  to  state  what  numbers  voted  for  the 
decision  of  the   court.     To  say  that  the  vote  sofa  that  the 

f  ,  ,   ,,  .         court  voted 

was  unanimous,  would  at  once  reveal  the  opin-  unanimously. 
ion  of  each  particular  member,  in  direct  viola- 
tion of  the  oath  ;  and  to  state  the  particular 
number  of  votes  would  be  entirely  unnecessary, 
to  say  the  least  of  it,  and  might  afford  the  means 
of  ascertaining  the  individual  opinions.  For 
wise  and  useful  purposes,  which  are  sufficiently 
manifest,  the  law  has  imposed  upon  the  mem- 
bers of  the  court  and  the  judge  advocate,  the  ob- 
ligation of  secresy  as  regards  the  votes  of  par- 
ticular members,  and  any  act  of  the  court  itself, 
or  of  members  of  it  which,  directly  or  indirectly 
removes  the  concealment  of  opinions  so-  solemn- 
ly promised,  ought  to  meet  with  the  severest  re- 
prehension or  punishment. 

So,  likewise,  would  it  be  equally  unbecoming  The  number  of 
to  declare  the  number  of  votes  by  which  a  pris-  In  acquittal  °* 

...     j          .  •  j«    ,  must  not  be 

oner  was  acquitted.  A  unanimous  verdict  to  stated. 
that  effect,  would  be  no  doubt  gratifying  to  the 
person  tried  ;  but  should  such  be  the  result  of  a 
bare  majority,  it  might  in  some  cases  stigmatize 
him  as  much  nearly  as  a  direct  censure.  It  is 
therefore  necessary,  except  in  the  cases  of  cap- 
ital convictions,  to  declare  simply  the  decision, 
without  any  reference  to  the  majority  by  which 
such  decision  was  made. 


180  FINDING. 

CHAPTER         Should  it  happen,  by  the  organization  of  the 
court,  or  from  the  accident  of  sickness  or  death 


Su8aSa°vfor0tofS  of  anJ  of  the  members,  that  there  is  an  equality 
ae  primer.  of  voteg  upon  the  finding,  the  doubt  must  be  re- 
solved in  favor  of  the  prisoner,  and  he  musl 
have  the  benefit  of  an  acquittal.1  The  necessity 
of  a  total  unanimity  is  confined  to  civil  juries  ; 
and  it  is  said,  "at  least  in  the  nembda,  or  jury 
of  the  ancient  Goths,  there  was  required,  (even 
in  criminal  cases,)  only  the  consent  of  the  major 
part ;  and  in  cases  of  an  equality,  the  defendant 
was  held  to  be  acquitted."2  A  decision  of  guilt 
therefore,  must,  at  least,  be  the  act  of  a  ma- 
jority. Should  any  other  rule  than  this  be 
adopted,  it  would,  by  making  an  equality  of 
votes  indecisive,  subject  the  prisoner  to  another 
trial,  and  the  service  to  vexatious  delays,  with- 
out a  greater  certainty  as  to  the  result. 
Finding  of  the  Trials  before  courts-martial  most  often  involve 

court  may  be 

•pecia..  the  investigation  of   divers   particulars   under 

various  and  distinct  charges.  Circumstances 
which  are  embodied  in  the  charges,  and  upon 
which  constructive  guilt  is  charged,  are  ne- 
cessarily dependent  upon  motive,  by  which  the 
degree  of  criminality  is  determined.  It  conse- 
quently rests  with  the  court  to  ascertain  this 
particular  degree,  and  declare  it  by  their  find- 
ing ;  and  the  verdict  may  be  special,  as  it  is  not 
necessary  that  it  be  general,  as  to  the  guilt  or 
acquittal  of  the  prisoner.  That  is,  a  portion  of 
the  specification  may  be  found,  and  other  points 
declared .  void  of  criminality,  or  the  entire  cir- 
cumstances set  forth,  be  proved,  and  yet  the 

1  Simmons  on  Courts  Martial,  p.  214. 
a  3  Black.  Com.,  376. 


FINDING.  181 


prisoner  be  declared  without  guilt.     But  in  all     CHAP  PER 
such  findings,  the  decision  of  the  court  must  be        VIIL 


clear  and  specific,  so  that  the  amount  of  punish-  ^f™  ^ the 
ment,  be  seen  to  bear  a  proper  relation  to  the  ^r  and  spe 
degree  of  guilt. 

So  it  may  happen  that  the  entire  facts  set  Facts  may  be 

.  .  found  without 

forth  in  the  specification  may  be  found,  and  yet  involving  guilt. 
the  charge  itself  may  not  be  sustained  by  the 
court,  and  the  prisoner  be  acquitted.  In  such 
cases,  the  guilt  of  the  prisoner  has  been  predi- 
cated upon  the  supposition  that  there  was  a 
criminal  knowledge,  or  intent  in  the  commis- 
sion of  the  acts  alleged,  but  of  which  the  evi- 
dence has  cleared  him. 

The  finding,  too,  besides  the  special  degrees  Prisoner  may 
of  guilt,  may  be  special  as  regards  the  facts;  of  par"  and  ac- 
such  and  such  fact  or  facts  declared  in  the  spe-  q 
cification,   may    be    proved,  and    the   prisoner 
found  guilty  of  them,  while  of  others,  or  other 
parts  of  the   same    specification,   the  prisoner 
would  be  acquitted. 

But  it  is  unnecessary  to  be  more  minute  upon 
this  part  of  the  court's  duty.  The  simple  rule 
intended  to  be  presented  for  notice  is,  that  the 
verdict  of  the  court  need  not  be  a  general  ver- 
dict of  guilt  or  acquittal ;  the  prisoner  may  be 
found  guilty  of  some  portions  of  the  charge,  and 
acquitted  upon  others.  The  practice  of  courts- 
martial  in  the  service  of  the  United  States,  has 
been  according  to  this  principle  in  most  cases, 
and  is  therefore  presumed  to  be  generally  well 
understood. 

The  degree  of  guilt  of  which  the  prisoner  is  Degree  of  gum 
found,   or  the    extent  to  which  the  charge  is 
proved  ought  to  be  well  defined  and  clearly  ex- 


182  FINDING. 

CHAPTER  pressed ;  and  so,  likewise,  the  mode  of  declar- 
YI11'  ing  the  prisoner  acquitted,  is  a  matter  of  some 
importance.  Various  forms  have  been  observed 
at  times,  in  regard  to  this  latter  part,  and  with- 
out intending  to  cast  any  censure  upon  the  ac- 
cused, the  court  have,  by  ambiguous  terms,  em- 
ployed to  express  an  acquittal,  made  him  obnox- 
ious to  malevolent  insinuations.  To  declare 
that  the  charges  are  not  proved,  and  therefore 
the  prisoner  is  acquitted,  is  certainly  an  ambigu- 
ous and  improper  way  of  declaring  the  inno- 
cence of  the  person  tried,  as  it  may,  in  truth, 
tend  to  strengthen  the  imputations  of  the  charge ; 
and  the  author  therefore  is  of  opinion,  that  such 
an  acquittal  ought  not  to  be  recorded. 
Terms  of  an  ac-  Acquittals  which  are  characterized  by  the 

quital  to  cor-  • 

respond  with     terms,    honorably ;   most  honorably  /  fully ;    or 
the  charge,       most  fully,  should,  of  course,  be  employed  only 

"  fully," "  hon-  ,J  >  J 

orabiy,"          when  the  nature  of  the  charge  makes  them  ne- 

"  most  fully," 

&c.  cessary.     It  would  certainly,  not  be  an  appro- 

priate form,  to  acquit  an  officer  honorably,  of  a 
charge  which  did  not  affect  his  honor.  When 
the  charges,  therefore,  bear  upon  the  honor  of 
the  accused,  or  have  been  fully  disproved,  such 

*  terms  or  epithets    may  be    allowable ;  but  in 

general,   where  no  strong  circumstances   exist, 
which  call  for  emphatic  opinions,  a  simple  ver- 
dict of  acquittal  is  the  better  formula. 
Motives  of  ac-       Courts-martial  have,  at  times,  stated  the  mo- 

quittal,  and          ..  «  . ,  .    ,  •.  ••  /.    .1 

opinion  of  the    tives  of  acquittal,  and  given  an  opinion  ot  the 
accused.0         conduct  of  the  accused  at  length.     It  is  compe- 
tent for  a  court-martial-to  remark  upon  the  con- 
duct of  the  prosecutor,1  as  connected  with  the 
charges,  or  as  developed  in  the  course  of  the 

1  The  accuser. 


FINDING. 


18S 


trial.     They  have  also  noticed  in  terms  of  dis-     CHAPTER 
approbation,  matters  which  appeared  as  prejudi-        vni> 
cial  to  discipline,  and  to  the  harmony  of  the 


official  or  personal  relations  of  the  officers  of  par-  ™uacrtk0f  nthe°n" 
ticular  regiments  or  corps.  prosecutor,  or 

i  upon  matters 

Personal  ill  will  and  animosity  of  an  accuser,  affecting  disci- 

*  '    pane  or  the  bar- 

and  frivolous  and  vexatious  accusations,  have  mony  of.  parti,c' 

ular  regiments 

all  been  made  the  subject  of  observation  by  °rcorP8- 

i-ii  .        Animosity  of 

courts-martial,  and  been  approved  by  the  revis-  accuser;  frivo- 

lous and  vera- 

ing  authority.  tious  charges 

mi  •  •  •  i      i    i.  remarked  upon. 

This  exercise  of  prerogative  on  such  delicate 
subjects  of  controversy  as  the  motives  and  con- 
duct of  the  party  accusing,  irrespective  of  the 
mere  facts  investigated  as  criminal  behaviour,  is 
a  just  and  beneficial  means  for  the  preservation 
of  decorum,  and  tends,  no  doubt,  when  dis- 
creetly used,  to  the  furtherance  of  good  order 
and  subordination.  So  also  have  courts-martial,  Declaration  by 

i  .•!  j'.-  f  the  court  in  fa- 

under  particular  conditions  of  strong  assevera-  vor  of  the  pros- 

tions  on  the  part  of  the  accused,  when  not  sup- 

ported by  proofs,  thought  it  becoming  to  declare 

their  opinion  that  the  prosecutor  had  been  ac- 

tuated by  proper  motives,  by  a  sense  of  duty 

and  regard  for  the  service,  and  that  his  conduct 

had  been   laudable  and  honorable.     Such  de- 

clarations on  the  part  of  the  court,  have  gene- 

rally accompanied  acquittals,  though  at  other 

times  a  conviction. 

The  conduct  of  witnesses,  more  especially  conduct  of  wit 
when  belonging  to  the  military  service,  has  also 
been  animadverted  upon  by  courts-martial  ;  and 
they  have  been  justified  in  so  doing.  Falsehood 
or  prevarication,  when  perpetrated  by  a  witness, 
speaking  under  the  solemn  obligations  of  an 
oath,  is  certainly  a  most  immoial,  as  well  as 


* 

184  FINDING. 

CHAPTER     dangerous  act,  and,  therefore,  all  communities 

vm>        which  have  enjoyed  the  benefits  of  a  judicial 

system,  have  considered  and  punished  it  as  a 

high  offence.     In  noticing  misconduct  on  the 

part  of  military  witnesses,  it  is  proper  that  the 

observations  of  the  court  should  be  specific,  not 

general, — so  that  the  offending  person  may  be 

brought  to  answer,  by  the  proper  authority, 

courts-martial    for  such  misconduct.     Courts-martial,  however, 

how  tEey  cen-   should  be  very  guarded  how  they  censure  wit- 
sure  witnesses  .         .  .••  .  .         . 
in  civil  capa-     nesses  m  a  civil  capacity,  for  inconsistencies  or 

city.  .        .  i-iii 

prevarications,  as  such  might  lead  to  prosecu- 
tions for  defamation ;  though,  in  some  cases, 
affecting  persons  in  civil  life,  an  allusion  to  facts 
may  be  very  just  and  necessary.  How  far  a 
court-martial  may  think  itself  authorized  to  an- 
imadvert upon  the  conduct  of  individuals  not 
before  the  court,  must,  of  course,  depend  upon 
the  particular  circumstances  of  each  case ;  but 
this  is,  undoubtedly,  a  very  nice  task,  and  ought 
to  be  resorted  to  only  in  extreme  cases :  as  to 
censure  or  condemn  a  person  without  a  hearing, 
unless  he  purposely  keep  out  of  the  way  to 
withhold  evidence  which  he  might  afford,  would 
clearly  infringe  a  prominent  rule  of  justice, 
rule.  As  a  general  rule,  it  may  be  said,  that  courts- 
martial  possess  the  right,  as  it  is  their  duty,  to 
notice  all  such  matters,  connected  with  the  par- 
ticular case  submitted  for  examination,  as  have 
a  bearing  upon  the  harmony  and  respectability 
of  the  service. 

In  the  deliberation  of  the  court  upon  the  find- 
ing  to  be  declared,  it  is  necessary  also  to  observe 
tiarged.    ^g  distinctions  which  may  be  made  between 
the  crime  as  alleged  in  the  charge,  and  the  de- 


FINDING.  185 

gree  of  offence  proved.  A  court-martial,  there-  CHAPTER 
fore,  may,  in  some  instances,  find  a  prisoner  Ym' 
guilty  of  the  offence  in  a  less  degree  than  that 
stated.  For  example,  a  prisoner  charged  with 
desertion,  may  be  acquitted  of  the  charge,  and 
found  guilty  of  absence  without  leave.  Here  it 
is  manifest  that  the  offence  proved  is  of  the 
same  character  as  the  one  charged,  but  differing 
in  degree,  arising  from  the  intention  of  the  ac- 
cused party.  So,  in  all  such  or  similar  findings 
of  a  court-martial,  must  there  exist  a  kindred 
nature  between  the  offences,  as  it  would  clearly 
be  a  violation  of  justice  to  find  a  prisoner  guilty 
of  a  crime  differing  in  kind,  and  therefore  not 
depending  upon  degree  of  culpability,  from  that 
with  which  he  stands  charged. 

It  is  evident  too,  that  as  a  prisoner  stands  Prisoner  can 
charged  with  a  specific  offence,  and  necessarily  guilty  m°an 
defends  himself  from  the  accusation  as  laid,  a  thLecharf«L 
court-martial,  although  empowered  to  find  him 
guilty  in  a  less  degree,  cannot  find  a  higher  de- 
gree of  guilt  than  that  alleged  in  the  charge. 
The  various  degrees  of  culpability  must  be  taken 
into  consideration  for  every  act  which  may  be 
divided  into  offences  of  greater  or  less  magni- 
tude ;  and  members  of  courts-martial,  when  de- 
liberating upon  the  question  of  guilt  or  inno- 
cence, should  be  careful  not  to  confound  what  is 
merely  an  extenuation,  or  palliative,  with  the 
evidence  of  commission  of  the  crime  specified. 
A  soldier,  who  should,  under  the  excitement  of 
great  provocation,  strike  an  officer,  would  doubt- 
less be  guilty  of  mutiny,  notwithstanding  the 
cause,  of  improper  treatment,  which  he  had  suf- 
fered :  and  a  sentinel,  after  the  fatigue  of  a  day's 

24 


m 

186  FINDING. 

CHAPTER  march,  who  should  sleep  on  his  post,  would  ne- 
vm*  cessarily  incur  the  penalty  of  the  law  for  such 
act.  These  causes,  then,  which  led  to  the 
offences  indicated,  might,  according  to  circum- 
stances, be  admitted  in  extenuation  of  the  crimes 
committed,  but  could  not,  most  assuredly,  autho- 
rize an  acquittal. 

The  evidence  having  been  fully  considered, 
the  opinions  of  the  members  are  received  by  the 
judge  advocate,  and  submitted  to  the  court. 
Although  an  open  and  free  discussion  has  taken 
place  prior  to  the  finding,  still,  it  does  not  al- 
ways necessarily  lead  to  the  exposure  of  each 
individual  opinion ;  and,  therefore,  it  is  not  re- 
quired of  each  member  to  pronounce  or  declare 

The  manner  of  his  openly.  To  avoid  the  knowledge  of  this 
as  it  is  given,  the  members  write  upon  a  slip  of 
paper  the  opinion,  guilty,  or  not  guilty,  or  with 
such  exceptions  and  modifications  as  may  be 
thought  just,  and  hand  them  to  the  judge  advo- 
cate, who,  after  receiving  every  vote,  arranges 
them  and  announces  the  verdict.  Should  there 
not  be  a  majority,  or  number  sufficient  to  deter- 
mine it,  the  fact  is  stated,  and  the  court  will 
discuss  the  subject  further,  and  vote  again,  until 

if  a  decision  is  a  finding  is  declared.     This  mode  of  voting  is 

first  time,  die    followed  upon  every  specification,  and  charge. 

ST?  finding11^  By  this  form  of  voting,  it  is  seen,  that  the  opin- 
ion of  any  one  member  is  not  known  to  the 
court,  until  after  all  have  voted,  and  it  is  only 
upon  arranging  the  votes,  for  the  confirmation 
of  the  verdict,  as  announced  by  the  judge  ad- 
vocate, that  the  opinion  of  each  member  is 
read. 


FINDING.  187 


The  finding  thus  declared  by  a  majority,  or     CHAPTER 
specific  proportion  of  all  the  court,  where  the        vm> 
law,  in  particular  offences,  requires  such,  is  the 
decision  of  the  court,  and  the  minority  are  bound 


jf  and  the  minor! 

'  ty  is  bound  by  it 


CHAPTER  IX. 


CHAPTER 
IX. 

Acquittal,  or 
the  sentence. 


No  evidence  of 
character  re- 
ceived after  the 
finding. 


The  minority 
bound  by  the 
decision  of  the 
court. 


Courts-martial 
act  in  a  two- 
fold capacity. 


OF  THE  SENTENCE. 

THE  court,  having  determined  the  finding  of 
innocence  or  guilt  of  the  prisoner,  proceed  to  the 
conclusion  of  their  labors  by  pronouncing  an  ac- 
quittal, or  affixing  the  punishment,  according  to 
the  nature  and  degree  of  the  offence. 

As  there  is  no  authority,  vested  by  law,  in  a 
court-martial,  to  receive  evidence  of  the  charac- 
ter of  the  prisoner,  or  of  former  convictions  after 
the  finding  is  made,  in  order  to  measure  the 
quantum  of  punishment,  or  kind  to  be  inflicted, 
it  necessarily  follows  that  the  remaining  step  for 
the  court  to  take,  is  to  declare  the  punishment 
which  the  convict  shall  suffer. 

Courts-martial,  as  has  been  observed  in  a  pre- 
ceding page,  declare  their  opinions  by  a  majority 
of  votes ;  it  has,  therefore,  been  made  a  question 
by  some,  of  how  far  the  minority  is  obliged  to 
consider  the  finding  of  a  majority,  when  the  sen- 
tence is  to  be  determined. 

It  must  be  recollected,  that  a  court-martial 
acts  in  the  twofold  capacity  of  judge  and  jury ; 
and  this  being  admitted,  the  difficulty  which  has 
presented  itself  to  some  minds  upon  this  point, 
is  at  once  solved. 

Whatever  is  done  by  the  court,  either  a  judi- 
cative  or  ministerial  act,  must  be  done  by  the 
whole  court,  and  it  therefore  would  be  mani- 


OF   THE    SENTENCE.  189 

festly  illegal  for  a  court-martial  to  pronounce  any     CHAPTER 
judgment,  which  had  not  been  considered  and  _     1Xt 


acted  upon  by  all  the  members.     Whatever  may  p'ery  member 

•     mu»t  vole  a 

have  been  the  opinion  of  a  member  as  to  the 
finding  of  the  court,  he  must,  upon  a  conviction 
being  declared  by  the  legal  number  of  votes, 
give  his  opinion  as  to  the  nature  and  degree  of 
punishment,  and  apportion  the  same  according 
to  the  degree  of  crime  of  which  the  majority 
has  found  the  prisoner  guilty.  The  minority 
thus  acts  independently  of  their  individual  opin- 
ions, and  award  punishment  according  and  ade- 
quate to  the  offence  of  the  accused. 

A  member  who  has  voted  for  an  acquittal, 
would  necessarily,  when  called  upon  to  vote  for 
the  sentence,  be  inclined  to  regard  the  guilt  of 
the  prisoner,  as  determined  by  a  majority  of  the 
court,  in  the  most  favorable  light,  and  give  as 
light  a  sentence  as  his  judgment  and  conscience 
would  permit  in  such  a  case ;  so  that  his  vote 
might,  to  some  extent,  meliorate  the  condition 
of  the  prisoner.1 

In  cases  not  within  the  discretion  of  the  court 
to  affix  the  punishment,  it  inevitably  follows  that 
the  punishment  is  in  accordance  with  the  law, 
and  the  finding  of  the  court,  and  cannot  be 
modified  by  any  individual  opinion  of  a  mem- 
ber, as  to  the  guilt  or  innocence  of  the  prisoner. 

The  oath  which  every  member  takes,  requires 
and  obliges  him  to  "  administer  justice  accord- 
ing to  the  articles  of  war,"  and  of  course,  it  fol- 
lows, that  upon  the  conviction  of  a  prisoner  for 

1  This  principle  was  remarkably  exemplified  by  the  votes  ot 
the  dissenting  members  in  the  late  trial  of  Bishop  B.  T  Onder- 
donk  of  New  York.  (See  the  Trial.) 


190  OP   THE   SENTENCE. 

CHAPTER  a  particular  offence,  every  member  must  vote 
IX>  the  punishment  which  the  law  has  prescribed. 
Such  cases  do  not  admit  of  an  appeal  to  the 
conscience  for  the  solution  of  any  doubts  which 
may  exist,  for  where  the  law  has  prescribed  a 
rule,  no  doubt  can  be  entertained. 

In  all  decisions  of  the  court,  the  will  of  the 
majority  binds  the  minority,  and  should  the 
members  who  have  voted  for  an  acquittal,  be 
excused  from  voting  for  punishment,  it  is  evi- 
dent that  the  opinion  of  the  majority  would  lose 
its  usual  effect  and  power.  The  moment  that 
the  finding  is  recorded,  the  right  of  individual 
judgment  ceases,  and  the  opinion  thus  declared 
is  alone  the  legal  opinion  of  the  court. 

A  little  reflection  will  show,  that  if  all  the 
members  were  not  obliged  to  vote  a  punishment 
in  accordance  with  the  finding  of  the  court,  it 
might  sometimes  happen,  that  an  officer  might 
be  cashiered,  or  a  soldier  condemned  to  corporal 
punishment,  by  the  vote  of  a  minority  of  the 
court.  This  would  be  a  manifest  absurdity,  and 
opposed  to  the  governing  principle  of  adjudi- 
cating questions  by  courts-martial.  And  should 
the  minority  of  the  court  always  cast  their  votes 
for  the  most  lenient  sentence,  it  would  operate  to 
the  advantage  and  benefit  of  the  criminal,  in  op- 
position to  the  requirements  of  justice,  and  cause 
the  punishments  awarded  to  be  very  dispropor- 
tioned  to  the  degree  of  offence,  of  which  the 
prisoner  is  culpable. 

It  is  affirmed  by  those  who  advocate  a  differ- 
ent rule,  that  it  is  incongruous  for  members  to 
vote  a  punishment,  who  have  declared  by  their 
finding,  that  the  prisoner  is  innocent  of  the 


OP   THE    SENTENCE.  191 

charges  alleged  against  him.     But  would  it  not     CHAPTER 

be  equally  reasonable  for  members  to  say,  that — . 

they  are  not  bound  by  any  interlocutory  decision 
of  the  court,  as  to  the  reception  or  rejection  of 
evidence,  because  they  did  not  agree  with  such 
decision  1  If  such  a  principle  could  be  admit- 
ted, it  is  very  certain  that  no  proceedings  of  a 
military  court  could  ever  be  perfected,  inasmuch 
as  unity  of  opinion  is  not  to  be  expected  through- 
out the  entire  proceedings. 

The  practice  of  the  American  service  has 
generally  been  in  accordance  with  this  rule, 
though  the  author  has  known  instances  in  which 
an  acquitting  member  urged  the  propriety  of  his 
being  excused  from  voting  a  punishment,  on  the 
ground  that  he  had  already  declared  the  prisoner 
innocent.  The  principle  of  legality  involved  in 
this  rule,  by  which  a  certain  number  of  officers 
are  named  to  constitute  a  court-martial,  renders 
the  observance  of  it  obligatory  upon  every  court, 
and  therefore  it  is  now  laid  down  as  a  positive 
and  certain  law  for  the  guidance  of  military 
courts. 

"  If  a  member  should  vote  for  death,  which  is  Member  voting 

..  i  «     -i         />     i  i  f°r  death, 

not  carried  by  two-thirds  of  the  court,  lie  must  which  is  not 

,  .    ,  carried,  must 

vote   some   other   punishment.      All    members  vote  some  other 
must  vote  some  legal  sentence,  and  if  that  which 
any  member  votes  for  is  not  carried,  some  pun- 
ishment must  be  voted  till  a  majority  agree  as 
to  one  punishment."1  * 

This  rule  is  essential.  It  sometimes  happens 
that  in  the  multiplicity  of  sentences  proposed, 
there  is  not  a  majority  of  voices  in  favor  of  any 
one  of  them ;  it  therefore  is  a  necessity  that 

1  Hough's  Mil.  Law  Authorities,  p.  113. 


102  OF   THE    SENTENCE. 

CHAPTER  opinions  should  be  so  far  modified  as  to  admit  of 
"•  a  decision  being  made.  Courts-martial,  unless 
in  cases,  where  from  some  particular  causes, 
they  think  it  not  just  to  impose  any  sentence, 
are  bound  to  affix  a  punishment  to  the  offence 
of  which  the  prisoner  has  been  found  guilty  ; 
and  of  course,  where  a  diversity  of  opinion  at 
first  exists  there  must  be  some  compromise  in 
order  to  determine  a  sentence. 

The  same  difficulty  is  also  sometimes  expe- 
rienced in  regard  to  the  finding.  Courts-martial 
are  bound  to  determine  the  matter  before  them 
according  to  evidence,  and  this  determination 
can  only  be  effected  by  a  conscientious  con- 
sideration of  the  testimony  in  its  bearing  upon 
the  various  parts  of  the  charge,  and  a  liberal  ex- 
ercise of  temper  and  reason  in  its  application. 
The  question  of  guilt  or  innocence,  and  the  mod- 
ifications of  the  degree  of  it,  is,  however,  more 
easily  determined,  than  the  kind  or  question  of 
punishment,  and  therefore  is  comparatively  an 
infrequent  cause  of  embarrassment. 
Every  member  Every  member  must  vote  upon  every  question 

must  vote  upon  *  9 

every  question,  presented  for  settlement  by  the  court.  The  in- 
terlocutory judgments  of  the  court,  which  may 
affect  the  course  or  progress,  and  even  the  ter- 
mination of  the  trial,  can  only  be  made  by  the 
action  of  all  the  court.  And  so  more  emphat- 
ically in  the  questions  of  guilt  or  innocence  and 
punishment,  must  every  member  give  his  opin- 
ion. 

Opinions  re-          jn  the  works  of  several  military  writers  there 

specting  mem-  J  / 

bers  voting  a    js  a  wide  difference  of  opinion  upon  the  question, 

punishment,  •  p 

appU    °^  ^quitting  members  voting  a  sentence  of  pun- 


ishment ;  but  those  writers,  expressed  opinions 


OF   THE    SENTENCE.  193 

. 

of  many  years  ago,  and  which  are  now  eonsicU     CHAPTER 
ered  inappropriate  in   a  legal   point  of  view.         IX' 
The  modern  practice  is  opposed  to  them,  and  the 
rule  is  understood  to  be  established  as  set  forth 
in  this  treatise. 

Civil  juries  are  required  to  find  a  verdict  be- 
fore separating,  but  such  is  not  the  case  with  * 
military  courts.  Possessing  a  judicial  power, 
the  latter  exercise  a  double  function,  and  are 
therefore  not  bound  by  the  same  restrictions 
which  are  imposed  upon  jurors  in  common  law 
cases.  Indeed,  the  nature  of  the  offences  con- 
sidered by  them,  pertaining  to,  and  affecting  a 
particular  community  only,  makes  it  unneces- 
sary. They  therefore  may  adjourn  from  day  to  courts-martial 
day,  to  consider  their  finding  or  sentence.  This 


power  in  a  court-martial  to  take  time  for  delibera-  Sft. 
tion,  when  they  come  to  make  a  final  decision  is 
of  great  importance  in  military  trials  ;  relieving 
the  mind  from  the  weariness  of  thought  when 
oppressed  with  doubt,  and  enabling  the  members 
to  consult  authorities  and  inform  themselves 
upon  questions,  involving  legal  proprieties,  with 
which  their  profession  or  pursuits  might  not 
have  required  much  acquaintance  at  a  previous 
moment. 

In  deliberating  upon  a  sentence,  it  is  of  im-  Kind  and  de- 
portance  to  the  court  to  consider  what  kinds  and  ment?PP3de 
degrees  of  punishment  are  legally  applicable  to  * 
the  case.     In  a  general  sense,  it  is  understood 
that  no  punishments  can  be  inflicted  except  such 
as  are  prescribed  by  statute,  or  are  in  accordance 
with  the  custom  of  war.     Where  a  statute  has  Rule  respect- 
designated  a  penalty  for  a  particular  offence,  ST11 
none  other  than  that  particular  penalty  can  be 

25 


194  OF    THE    SENTENCE. 

r 

CHAPTER     imposed ;  and  therefore  two  punishments  essen- 
IX<         tially  differing  in  their  nature,  cannot  be  awarded 
unless  by  authority  of  law. 

Thus  a  court-martial  cannot  sentence  a  pris- 
oner to  be  flogged  and  imprisoned  for  the  same 
offence,  unless  a  discretionary  authority  is  lodged 
j  in  the  court,  or  .there  is  the  express  sanction  of 
statutory  regulation  for  it.  In  the  American 
army  no  other  crime  than  that  of  desertion  may 
subject  an  offender  to  corporal  punishment  by 
flogging ;  but  as  the  court  have  the  legal  discre- 
tion vested  in  them  to  punish  according  to  their 
judgment,  convicts,  for  the  crime  of  desertion, 
are  frequently  punished  by  stripes  and  with 

ard  labor. 
Death  can  only       Death  may  be  awarded  against  an  officer  or 

be  awarded  in  m  J 

such  cases  as    soldier,  but  only  in  such  cases  as  are  specially 

are  specially  '  » 

mentioned  by    mentioned  in  the  articles  of  war.1     Reprimand 

the  laws. 

or  admonition,  public  or  private,  suspension  from 

ank,  and  forfeiture  of  pay,  cashiering  or  dismis- 

al  from  the  service,  with  the  addition  of  incapa- 

ity  to  have  or  hold  any  office  in  the  service  of 

the  United  States,  (this  latter   part,  however, 

is  only  admissible  in  such  cases  as  are  specially 

mentioned  by  the  law,)  are  punishments  usually 

awarded  in  the  case  of  commissioned  officers. 

Cashiering  and       It  was  at  one  time  held  a  question,  whether 

dismission. 

cashiering  did  not  imply,  according  to  the  cus- 
tom of  war,  a  higher  degree  of  infamy  than  dis- 
mission. The  difference  as  to  the  import  of 
these  terms,  if  any  ever  existed,  is  now  entirely 
lost  sight  of,  and  it  is  altogether  unnecessary  to 
regard  it,  inasmuch  as  the  articles  of  war  pre- 

i  By  the  "  Articles  of  War,"  it  is  understood  to  include  all  stat- 
utes enacted  for  the  government  of  the  military  forces. 


OF    THE    SENTENCE. 


195 


scribe  in  all  cases  where  a  court  may  judge  it 
proper,  whether  the  offender  shall  be  cashiered 
or  dismissed.  By  adopting  in  the  sentence  the 
term  employed  by  the  law,  all  cause  of  dispute 
is  avoided.  That  there  was  no  difference  in- 
tended as  to  the  effect  of  a  sentence,  in  which 
either  the  one  or  the  other  term  is  employed, 
may  be  safely  inferred  from  the  fact,  that  where 
ever  incapacity  for  future  service  is  meant,  such 
purpose  is  clearly  declared.  And  also  that  in 
some  instances,  of  breach  of  discipline  merely, 
an  officer  is  made  liable  to  be  cashiered ;  while  for 
other  offences,  such  as  is  set  forth  in  the  eighty- 
third  article  of  war,  for  conduct  unbecoming  an 
officer  and  a  gentleman,  whereby  his  integrity 
and  honor  is  impugned,  he  is  only  to  be  dis- 
missed ! 

Death ;  confinement,  solitary,  or  otherwise ; 
hard  labor ;  flogging ;  forfeiture  of  pay  and  al- 
lowances ;  marking  with  an  initial  letter,  on  the 
hip,  indelibly ;  and  reprimands  ;  are  the  punish- 
ments which  are  inflicted  upon  enlisted  soldiers. 
Non-commissioned  officers  are  also  sentenced  to 
loss  of  rank,  by  reduction  to  the  station  of  a  pri- 
vate soldier.  And  in  all  cases  where  a  non- 
commissioned officer  is  to  be  punished  by  stripes 
or  imprisonment,  he  must  first  be  reduced,  as  it 
is  contrary  to  the  principles  of  the  service  to 
cause  the  like  to  be  inflicted  upon  a  non-commis- 
sioned officer,  as  such. 

The  punishments,  therefore,  which  a  court- 
martial  may  sentence  a  prisoner  to  suffer,  are 
clearly  understood,  and  derived  from  express 
statute  or  the  custom  of  war.  Should  it  happen 
that  an  offence  falling  within  the  jurisdiction  of 


CHAPTER 
IX. 


Punishments  in 
cases  of  enlisted 
soldiers. 


How  punish- 
ments are  au- 
thorized, where 
the  kind  of 
punishment  is 
not  prescribed. 


196  OF   THE    SENTENCE. 

CHAPTER     a  court-martial,  be  not  provided  for  by  a  special 
"•         penalty,  but  left  to  be  determined  by  the  discre- 
tion of  the  court,  such  sentence  must  be  in  ac- 
cordance with  the  common  law  of  the  land,  or 
the  custom  of  war  in  like  cases:  a  departure 
from  this  would  make"  the  sentence  unusual,  and 
as  such,  unlawful, 
in  •rating  sen-       In  passing  sentence,  courts-martial  should  be 

tences,  clear  ,  ..  .  .  .  . 

and  unambigu-  careful  to  employ  clear  and  unambiguous  Ian- 
used,  guage,  so  that  the  kind  and  degree  of  punish- 
ment shall  be  set  forth  definitely  and  precisely ; 
and  the  mode  of  inflicting  capital  punishment 
should  be  designated.  The  military  laws  do  not 
say  how  a  criminal,  offending  against  such  laws, 
shall  be  put  to  death,  but  leave  it  entirely  to  the 
custom  of  war.  Shooting,  or  hanging,  is  the 
method  determined  by  such  custom.  A  spy  is 
generally  hanged ;  and  mutiny,  accompanied 
with  loss  of  life,  is  punished  by  the  same  means. 
Desertion,  disobedience  of  orders,  or  other  mili- 

The  mode  of    tary  crime,  usually  by  shooting :  the  mode,  how- 
execution  may  .  f  t       •       •  t         i       •  7 
be  stated  in  the  ever,  in  all  cases,  (that  is,  either  shooting  or  hang- 
ing,) may  be  declared  in  the  sentence.    The  sen- 
tence, too,  in  capital  cases,  may  simply  declare 
the  judgment — to  be  shot  to  death  with  musketry, 
— or  be  hanged  by  tlie  neck  until  dead;  or  it  may 
add,  at  such  time  and  place  as  the  commanding 
general,  or  (as  the  case  may  be)  the  President  of 
the  United  States  may  appoint. 

Corporal  pun-  So,  for  instance,  should  the  language  of  the 
sentence  be  full  and  explicit  when  corporal  pun- 
ishment is  to  be  inflicted,  or  when  the  convict  is 

to  be  marked  :  as  that,  he  receive lasJies  on 

the  bare  back,  with  a  cat-o' -nine-tails,  or  that  lie 


OP    THE    SENTENCE.  197 

be  marked  on  the hip  with  the  letter  D,  one     CHAPTER 

inch  in  length,  in  indelible  ink.  IX' 

As  soldiers  are  marked  for  desertion  with  the  Marking  for  de- 

sertion  or 

letter  D,  and  also,  at  times,  with  the  same  letter  drunkenness. 
for  drunkenness,  it  is  recommended,  that  for  the 
first  named  offence  the  mark  be  put  on  the  left 
hip,  and  for  the  other  on  the  right  hip.  This 
will  enable  any  officer,  afterward,  should  the 
convict  be  presented  for  notice,  to  determine  the 
offence  for  which  he  has  been  marked. 

As  the  judgment  of  a  court-martial  is  not  final,  Judgment  pro- 
but  must  be  reviewed  and  approved  before  exe-  final  until  ap- 

.,    .  ,    ,,  ,.    ,     .      proved.    Im- 

cution,  it  is  not  competent  for  a  court-martial,  in  proper  to  put  in 
sentencing  an  officer  to  be  cashiered,  to  add,  and  that  an  officer 
he  is  hereby  cashiered  accordingly.    Such  language  cashiered  ac- 
would  exceed  the  power  and  authority  vested  in  c< 
a  court-martial,  and,  therefore,  is  entirely  mis- 
placed and  inoperative. 

In  order  to  guard  against  any  misapprehen-  Words  of  the 

/.    ,i  .  c    .1  ,-i-  ^1      statute  to  be 

sion  of  the  meaning  of  the  court,  it  is  not  only  used. 
necessary  to  be  cautious  in  the  use  of  language 
which  expresses  the  sentence,  but  in  every  case 
where  the  law  has  made  special  provision  for 
the  punishment  of  particular  offences,  and,  in- 
deed, in  every  case  in  which  it  can  be  done,  the 
court  would  do  well  to  use  the  precise  terms 
employed  by  the  statute ;  by  this  means  all 
doubt  and  cavilling  are  obviated. 

The  period  of  imprisonment  is  sometimes  ex-  imprisonment, 

,    ,  when  commen- 

pressed  by  the  sentence  to  commence  from  a  ting. 
certain  date.  In  cases  where  no  day  is  declared, 
it  is  understood  to  begin  from  the  promulgation 
of  the  sentence;  and  should  an  unusual  time 
elapse  between  the  approval  and  the  promulga- 
tion of  the  sentence,  such,  beyond  the*time  ne- 


198 


OF   THE    SENTENCE. 


CHAPTER 
IX. 


Recommenda- 
tion in  favor  of 
prisoner. 


Court  may  al- 
lude to  its  mo- 
tives of  judg- 
ment. 


Method  of  re- 
commending 
prisoner,  for- 
merly. 


Recommenda- 
tion, mode  of, 
prescribed. 
The  particular 
action  to  be  ob- 
served not  to 
be  pointed  out 


cessary  for  its  communication,  is  counted  as  part 
of  the  punishment.  This,  for  ordinary  or  simple 
imprisonment,  is  just,  inasmuch  as  the  convict  is 
confined,  necessarily  awaiting  the  publication  of 
the  sentence ;  where  solitary  confinement,  or 
confinement  on  low  diet,  is  denounced  against 
him,  the  time  so  named  must,  of  course,  be 
completed  with  the  conditions  required. 

The  sentence  of  the  court,  as  has  been  re- 
marked, is  not  final ;  and  in  cases  where  the 
law  has  declared  the  punishment  to  be  inflicted, 
there  may  be  extenuating  circumstances,  to  in- 
duce a  favorable  recommendation  of  the  prisoner. 

Where  the  law  has  left  it  discretionary  with 
the  court  to  determine  the  sentence,  the  motives 
by  which  the  court  have  been  actuated  in  deter- 
mining the  same  may  be  alluded  to,  and  such 
allusion  ought  to  be  in  brief  and  precise  terms. 

The  manner  in  which  a  recommendation  to 
mercy  was  presented  for  consideration  formerly, 
was  extremely  variant ;  at  times  being  em- 
bodied in  the  sentence,  and  at  others  appended 
to  it.  It  was  also  frequently  expressed  as  to 
the  manner  in  which  this  merciful  recommenda- 
tion was  to  be  carried  out.  This  changeable 
and  uncertain  mode  was,  of  course,  objection- 
able and  improper.  The  manner  in  which  re- 
commendations are  to  be  made,  is  now  pre- 
scribed by  the  regulations  for  the  army.  Para- 
graph 231  says,  "No  recommendation  will  be 
embraced  in  the  body  of  the  sentence,  but  will 
be  inserted  after  the  signatures  of  the  president 
of  the  court  and  the  judge  advocate.  Such 
members  only,  who  recommend,  will  sign  the 
same."  .  The  writer  will  add,  that  a  court-mar- 


OF    THE    SENTENCE  199 

tial  ought  not  to  point  out  any  particular  mode     CHAPTER 
in  which  the  clemency  of  the  commanding  gene-         IX' 
ral,  or  the  president  of  the  United  States  should 
be  exercised. 

The  recommendation  is  written,  as  directed,  Recommenda- 

*  uon  written  be- 
immediately  below  the  sentence,  and  this  is  ob-  low  the  sen- 

•  tence. 

served  as  a  better  way  than  that  of  writing  it 
upon  a  detached  piece  of  paper,  or  making  it  the 
subject  of  a  letter,  —  as  such  papers  are  liable  to 
be  mislaid  or  lost. 

By  the  regulation  above  quoted  it  is  seen  that 


•  ,/.,i  ,    .  j   ,  tion  the  act  of 

a  majority  of  the  court  is  not  required  to  concur  individua 
in  a  recommendation,  and  thence  it  would  seem 
that  a  recommendation  is  not  an  act  of  the  court, 
but  the  mere  expression  of  the  wishes  or  opin- 
ions of  the  individual  members  who  sign  it. 
There  is  something  contradictory  or  incongruous 
in  this,  and  apparently  opposed  to  all  other  acts, 
so  far  as  the  court  is  considered  as  a  body, 
which  are  borne  upon  the  record.  It  is,  indeed, 
a  matter  worthy  of  consideration,  whether  any 
recommendation  should  be  allowed  to  appear 
which  is  not  concurred  in  by  a  majority  of  the 
court.  Would  not,  indeed,  the  recommendation 
of  a  minority  only,  be  conclusive  evidence  against 
the  prisoner  of  the  court's  opinion  1  and  can  it 
be  expected  that  such  recommendation  should 
meet  with  a  favorable  reception  at  head  quarters  ! 
The  regulation,  it  is  true,  admits  the  recom- 
mendation of  a  minority,  even  of  an  individual, 
to  be  appended  to  the  record,  and,  therefore,  it 
must  be  expected  that  such  recommendations 
will,  at  times,  appear  ;  but,  it  certainly  ought  to 
be  weighed  in  the  minds  of  those  persons  favor- 
ably disposed  to  clemency,  whether,  under  such 


200 


OF    THE    SENTENCE. 


CHAPTER 
IX. 


Recommenda- 
tion when  the 
punishment  is 
discretionary. 


circumstances,  the  appeal  for  mercy  may  not  be, 
with  the  reviewing  authority,  a  substantial  rea- 
son for  the  confirmation  and  execution  of  the 
sentence. 

When  the  judgment  of  the  court,  as  to  the 
amount  and  kind  of  punishment,  is  discretion- 
ary, it  appears  somewhat  in  contradiction  to  the 
sentence  to  offer  a  recommendation  in  favor  of 
the  prisoner,  unless  such  recommendation  comes 
from  a  minority  of  the  court ;  and  this  is  objec- 
tionable to  a  degree,  because  it  may,  in  fact,  in- 
dicate the  opinions  of  the  particular  members. 
Why  should  a  court, — that  is,  the  majority,  offer 
a  recommendation  to  mercy  and  throw  the  em- 
barrassment and  responsibility  of  acting  on  such, 
upon  the  reviewing  officer,  when  they  them- 
selves have  the  power  to  declare  a  mitigated 
punishment?  Now,  it  is  true,  there  may  be 
cases  in  which  the  court  feel  bound  to  pass  a 
sentence  of  punishment  of  some  kind,  however 
light  or  insignificant,  though,  at  the  same  time, 
believing  the  prisoner  to  be  excusable,  and, 
therefore,  recommend  a  total  remission  of  it ; 
still,  the  objection  exists  in  part,  and  particu- 
larly so  against  the  presentation  of  a  recommen- 
dation when  not  sanctioned  by  a  majority  of  the 
court.  The  custom  of  the  service  admits  a  re- 
commendation from  a  minority  of  the  court ; 
but  it  is  respectfully  submitted  to  all  members 
of  courts-martial  whether  the  utmost  caution 
should  not  be  observed  in  following  such  prac- 
tice ;  a  practice  which,  however  based  upon  the 
exercise  of  humane  feelings,  often  exhibits  the 
opinions  and  acts  of  the  members,  as  unstable 
and  inconsistent ! 


OF    THE    SENTENCE.  201 


It  is  an  acknowledged  right,  as  being  within     CHAPTER 
the  competency  of  the  court,  to  modify  or  change         IX' 


the  sentence  passed  by  them,  at  any  time  pre-  Sge™^  sen- 
vious  to  their  final  adjournment. 

In  the  case  of  Peter  Williamson,  who  was  case  of  Peter 
tried  in  June,  1819,  for  desertion,  the  court  sen-  A 
tenced  him  "  to  confinement  at  hard  labor  with 
a  ball  and  chain  attached  to  his  leg,"  &c.,  &c. 
Upon  the  ensuing  day,  at  the  suggestion  of  a 
member,  the   said   sentence  was  reconsidered, 
and  the  court  substituted  the  following:  —  "That 
the  said  Peter  Williamson  be  shot  to  death." 

Upon  reference  of  this  question,  as  to  the 
power  of  the  court,  the  attorney  general  thus 
maintained  the  right  claimed  by  the  court- 
martial  i1 

"  In  courts  of  civil  jurisdiction,  when  sitting 
even  in  criminal  cases,  the  court  is  not  con- 
cluded by  an  opinion  which  they  may  have  ex- 
pressed in  any  one  day  of  its  session,  the  whole 
subject  being  completely  within  its  control  until 
the  end  of  the  term.  On  recurring  to  the  au- 
thors who  have  treated  of  military  law,  I  per- 
ceive no  difference  between  martial  and  civil 
courts  in  this  respect  :  —  the  term  of  the  martial 
court  continues  from  the  time  of  its  assemblage 
until  its  adjournment  sine  die  ;  the  term  of  the 
civil  courts  of  the  nation  continues  from  the 
time  of  their  assemblage  until  their  adjournment 
to  the  court  in  course.  And  I  am  not  apprized 
of  any  difference  in  the  powers  of  the  two 
courts,  over  the  subjects  which  severally  belong 
to  them,  during  the  continuance  of  their  respec- 
tive terms." 

1  Opinions,  p.  215.     Wirt. 

26 


,  . 

202  OF    THE    SENTENCE. 

CHAPTER  "  A  general  court-martial  convened  for  general 
IX-  purposes,  continues  a  court,  with  full  powers, 
while  it  has  any  business  to  do,  of  which  it 
alone  is  the  judge;  and  while  it  does  so  con, 
tinue  a  court,  its  power  of  judicial  deliberation 
and  decision  over  all  the  subjects  which  may 
have  been  brought  before  it,  is  as  full  on  the  las 
day  of  its  sittings  as  on  any  previous  day." 


CHAPTER  X. 


CONFIRMATION  OF  PROCEEDINGS.     REVISION. 

BY  the  sixty-fifth  article  of  war  it  is  ordained, 
that,  "no  sentence  of  a  court-martial  shall  be 
carried  into  execution,  until  the  whole  proceed- 
ings shall  have  been  laid  before  the  officer  or- 
dering the  same,  or  the  officer  commanding  the 
troops  for  the  time  being ;"  or  according  to  the 
circumstances  of  the  case,  "  shall  have  been 
transmitted  to  the  secretary  of  war,  to  be  laid 
before  the  President  of  the  United  States,  for 
his  confirmation,  or  disapproval  and  orders." 

There  is  no  distinct  authority  given  to  any 
officer  to  .remit  the  proceedings  of  a  court-mar- 
tial for  re-consideration  ;  but  this  power  seems 
to  be  incidental  to  the  constitution  of  courts  of 
justice,  and  by  which  the  judge  may  remand  a 
jury  for  the  re-consideration  of  their  verdict. 
By  analogy,  the  same  authority  is  vested  in  the 
reviewing  officer  of  a  court-martial,  and  is  an 
authority  whose  exercise  is  founded  in  expedi- 
ency and  policy,  and  tending  to  the  most  bene- 
ficial ends. 

The  advantages  to  be  secured  by  this  con- 
firmation of  a  sentence  before  it  can  be  carried 
into  execution,  are  too  obvious  to  need  any  ex- 
planation, and  attain  for  the  prisoner  all  the  be- 
nefits of  a  disinterested  and  experienced  judge. 
When  the  proceedings  of  a  court-martial  are 


CHAPTER 


Reconsidera- 

tionofproceed- 

ings  incidental 

to  tne  constitu- 

tion 

martial. 


Advantage  or 

benefits  of  con- 

fimmtion prior 

to  execution  of 

sentence. 


204 


REVISION. 


CHAPTER 
X. 


Additional  ev* 
dence  not  ad- 
missible upon 
review  by  tb* 
court 


submitted  to  the  officer  ordering  the  same,  for 
his  confirmation  or  disapproval  and  orders,  it  be- 
comes his  duty  to  peruse,  in  the  most.  ?areful 
manner,  the  record  of  the  court,  and  to  ascertain 
any  error  which  may  have  been  admitted.  Or 
should  the  record  be  found  perfect  in  all  its  parts, 
he  is  to  signify  his  decision  thereon,  and  give  his 
orders  accordingly.  But  if  any  mistake  or  error 
in  the  conduct  of  the  trial  be  presented  to  view, 
the  proceedings  of  the  court  may  be  sent  back 
to  them  for  revision. 

To  revise  the  proceedings,  is,  as  the  term  itself 
imports,  to,  re-examine,  or  to  look  over  again, 
what  has  been  done,  and  therefore  would  sig- 
nify that  nothing  else  is  meant,  than  a  mere  re- 
consideration of  the  opinions,  finding,  and  sen- 
tence, which  have  been  already  pronounced ; 
and  accordingly  the  fundamental  rule  to  be  ob- 
served is,  that  upon  a  revision,  no  additional  evi- 
dence can  be  taken,  but  that  the  recorded  testi- 
mony, as  it  stands,  must  be  the  sole  basis  for 
the  judgment  of  the  court.  Were  not  this  rule 
strictly  observed,  it  would  be  tantamount  to 
opening  the  trial  de  novo,  and  after  the  prisoner 
had  disclosed  his  defence.  To  permit  the  re-ex- 
amination of  a  witness  previously  called,  for  ex- 
planation even,  would  induce  the  necessity  of 
permitting  a  cross-examination  by  a  party,  which 
might  involve  new  matter,  and  thus  run  into  a 
prolonged  investigation.  The  characters  of  wit- 
nesses might  be  impeached  and  re-established, 
and  new  circumstances  to  which  they  might  de- 
pose, be  disproved  by  contrary  evidence.  The 
illegality  of  such  procedure  is  certain,  and  can- 
not be  allowed. 


REVISION.  205 

The  principle,  then,  which  directs  the  con-     CHAPTER 
duct  of  a  court-martial,  being  thus  simple,  it  is         x' 
a  matter  of   importance   to  understand  under  ^^eedings1 
what  circumstances  a  revision  ought  to  be  or-  to  °e  ordere°- 
dered,  and  how  far  a  court  may  amend  any  por- 
tion of  its  proceedings.     The  officer  who  directs 
a  court-martial  to  re-convene,  to  re-consider  its 
original  opinion,  points  out,  at  the  same  time, 
the  particular  cause  which  makes  a  re-considera- 
tion necessary  ;  and  the  court  is  therefore  bound 
to  re-examine  with  deliberation  and  care,  the 
reasons  upon  which  the  former  opinion  rested. 
The  principal  cause  for  requiring  courts-martial  Principal 

causes  for  revi 

to  revise  their  judgments,  is  where  an  insuffi-  ?al  of  proceed- 
cient  or  undue  weight  has  been  given  to  the  tes- 
timony, and  is  supposed  to  arise  from  inadver- 
tence, misconception  of  the  law,  or  the  custom 
of  war ;  or  where  an  exorbitant,  inadequate,  or 
illegal  punishment  has  been  awarded. 

But  it  must  be  remembered,  that  a  court-mar-  Proceedings- 
tial  on  revision,  cannot  alter  or  obliterate  any  of  iteration  of, 

.,  •,.  ,     ,     .       ..      forbidden. 

its  proceedings,  or  expunge  any  recorded  testi- 
mony.    Nor  after  the  record  of  a  judicial  pro- 
ceeding has  been  made  up,  can  it  be  in  any 
manner  altered,  though  additions  may  be  made 
to  it.     It  thence  follows,  that  the  original  find- 
ing, or  sentence,  cannot  be  effaced,  but  that  the 
revised  opinion  is. merely  an  addition  to  the  ori- 
ginal record.     Where  irrelevant  evidence  has  irrelevant  evi- 
been  admitted,  or  an  incompetent  witness  has  Sjtent  wit 
been  examined,  it  is  not  held  sufficient  to  vitiate  SfvaiiS  p?» 
the  proceedings  ;  and  the  reviewing  officer,  on  a  ceedings- 
consideration    of  all    the    circumstances,   may 
either  confirm  the  sentence  or  extend  his  pardon 
to  the  prisoner.     "  If  the  finding  of  the  court, 


206  REVISION. 

CHAPTER  in  such  case,  be  agreeable 'to  equity  and  justice, 
*•  there  are  not  sufficient  grounds  for  a  pardon.  It 
is  only  when  the  finding  of  a  court-martial  is 
founded  on  irrelevant  matter,  or  is  not  supported 
by,  or  contrary  to  the  evidence  recorded,  that  a 
pardon  may  reasonably  be  expected,"1  or  a  new 
trial  granted.2 

ca«e  of  captain  In  the  case  of  Captain  Nathaniel  N.  Hall, 
who  was  tried  by  a  general  court-martial  at 
Plattsburgh,  N.  Y.,  on  the  5th  of  June,  1818, 
there  was  an  appeal  made  by  the  prisoner  to 
the  President,  on  the  ground  that  the  court  had 
refused  to  receive  certain  evidence,  which  was 
both  legal  and  material  to  the  defence.  Upon 
the  question  which  then  arose,  as  to  the  power 
to  grant  a  new  trial,  the  attorney  general,  (Mr. 
Wirt,)  said:3  "the  President  of  the  United 
States  had  the  power  to  order  a  new  trial  for 
the  benefit  of  the  prisoner ;  and  such  power  was 
derived  from  the  language  of  the  65th  article  of 
war,  of  the  act  of  Congress  of  April  KHh,  1806, 
which  says — that  in  certain  cases,  the  proceed- 
ings are  to  be  laid  before  him,  for  his  confirma- 
tion or  disapproval,  and  orders  in  the  case ;  the 
last  words,  having  no  other  just  interpretation 
than  the  acknowledgment  of  such  authority. 
In  revising  a  sentence,  and  ordering  a«  new  trial, 
he  is,  however,  to  be  governed  by  the  same  con- 
siderations which  would  determine  a  superior 
court  of  law,  in  an  appeal  from  the  inferior  civil 
courts." 

But  although  a  court-martial,  on  revision,  is 
competent  to  amend  any  defect  which  has  re- 

1  Kennedy,  p.  233.  2  3  Black.  Com.,  p.  387.     Note. 

3  Opinions,  p.  171. 


REVISION.  207 


X. 


suited  from  its  own  decision,  not  connected  with  CHAPTER 
questions  of  legality  of  procedure,  it  yet  never- 
theless, cannot  amend  any  illegality  as  to  the 
constitution  of  the  court,  or  any  defect  in  its 
composition ;  nor  can  any  illegality  in  the  charge  "j^,  own  de" 
be  so  remedied.  Such  deficiencies  must  be 
fatal  to  all  the  proceedings,  and  any  sentence  or 
opinions  rendered  by  them  be  entirely  innoxious 
to  the  prisoner.  Errors  of  this  description  must 
entirely  invalidate  the  action  of  the  court,  and 
render  the  prisoner  liable  to  trial  by  another 
court.  In  the  treatise  on  the  practice  of  courts-  opinion  of 
martial  by  Captain  Simmons,  (page  325,)  a  con- 
trary opinion  is  entertained.  "  But  (says  he)  it 
cannot  be  admitted  that  every  such  capital  error 
must,  necessarily,  so  entirely  annihilate  the  court, 
as  to  expose  the  prisoner  to  trial  by  another  court- 
martial."  And,  "  a  court  of  inferior  jurisdiction 
may  still,  in  itself,  be  a  legal  court,  though 
not  legally  competent  to  entertain  a  particular 
charge,  or  any  charge  against  an  individual 
of  privileged  rank,  for  the  trial  of  whom  a  court 
specially  composed  is  enjoined,  as  in  the  case  of 
a  field  officer ;  but  a  trial,  having,  by  inadver- 
tence, illegally  taken  place  before  such  intrinsi- 
cally legal  court,  and  an  acquittal  or  conviction 
being  once  recorded,  the  statute  just  quoted,1 
must  preclude  any  further  trial.  If,  indeed,  the 
court  be  of  itself  illegally  constituted,  as  for  in- 
stance by  assembling  under  an  expired  warrant, 
by  administering  an  improper  oath,  or  by  omit- 
ting the  appointed  one,  it  is,  in  fact,  no  court  at 

1  That  no  officer  or  soldier  being  acquitted  or  convicted  of  any 
offence  shall  be  liable  to  be  tried  a  second  time  by  the  same  or  any 
other  court-martial  for  the  same  offence.  (British  Statute.) 


" 


A  \ 


208 


REVISION. 


CHAPTER 
X. 


Distinction  re- 
marked upon. 


Acquittal  or 
conviction  must 
be  legal  in  or- 
der to  bar  an- 
other trial. 


all,  and  therefore,  whatever  opinion  such  illegal 
.  assembly  may  be  pleased  to  express  in  writing, 
it  cannot  be  termed  the  acquittal  or  conviction 
of  an  officer  or  soldier  by  a  court-martial ;  their 
acts  would  be  mere  nullities." 

The  distinction  which  is  here  attempted  to  be 
drawn,  appears  to  the  author  to  be  without  legal 
existence.  It  is  true  that  there  is  a  difference  in 
fact  between  the  acts  of  a  legally  constituted 
body,  and  of  an  assembly  not  recognized  in  law ; 
but  the  first  being  illegal  has  no  more  efficacy  in 
binding  the  subject  to  whom  they  are  applied 
than  those  of  the  latter,  which  are  admitted  to 
be  without  force.  A  judicial  body  which  is  for- 
bidden by  law  to  entertain  jurisdiction  of  cer- 
tain offences  and  of  particular  persons,  cannot 
most  assuredly  by  neglect  and  non-observance 
of  the  injunction,  restrain  another  tribunal  in 
the  exercise  of  its  legal  powers.  Such  a  princi- 
ple if  admitted  would  lead  to  the  grossest 
abuses,  and  weaken  the  securities  against  crime, 
and  the  foundations  of  criminal  justice.  The 
language  of  the  fundamental  law  both  for  this 
country  and  for  England,  is,  that  "no  person 
shall  be  subject  for  the  same  offence  to  be  twice 
put  in  jeopardy  of  life  or  limb."  And  how  can 
a  person  be  put  in  jeopardy  (legal  jeopardy)  by 
the  action  of  a  court  which  has  no  power  to  en- 
force its  mandate  ? 

An  acquittal  or  conviction  in  law,  signifies  a 
legal  acquittal  or  conviction  ;  and  the  judgment 
of  a  court  having  no  power  to  try,  cannot  de- 
clare such  acquittal  or  conviction.  If  a  court  is 
limited  in  its  judicial  powers,  all  acts  by  it 
which  transcend  such  limits,  cannot  be  acknowl- 


REVISION. 


209 


edged,  for  if  it  were  otherwise,  of  what  use  in 
imposing  any  restraint  upon  its  authority? 
Now  a  court  of  this  description,  though  legally 
constituted,  which  should  take  cognizance  of 
acts  and  persons,  refused  to  it  by  law,  is  in  re- 
ference to  the  particular  subject  before  it,  no 
court  at  all.  And  a  body  which  is  only  clothed 
with  authority  for  the  attainment  of  particular 
objects,  cannot  be  considered  as  covered  with 
the  judicial  vesture  when  it  departs  from  the 
purposes  for  which  it  was  erected. 

A  court  of  inferior  jurisdiction  is  in  itself  un- 
doubtedly a  legal  court ;  but  its  acts  can  only 
have  effect  within  the  sphere  of  its  legitimate 
jurisdiction.  Now  to  effect  a  legal  acquittal  or 
a  legal  conviction,  which  may  forever  thereafter 
operate  as  a  bar  to  a  trial  for  the  same  offence 
by  another  court,  the  powers  of  the  court  which 
tries  must  be  competent  to  entertain  or  take  cog- 
nizance of  the  crime  charged,  and  of  the  person 
offending.  It  is  not  sufficient  that  the  court, 
which  thus  notices  a  charge,  or  a  criminal  be- 
yond the  pale  of  its  jurisdiction,  should  in  it- 
self be  a  legal  court,  to  place  the  prisoner  be- 
yond the  possibility  of  another  trial;  but  it 
must  have  full  authority  for  its  proceeding,  to 
ensure  such  a  consequence.  To  the  writer  the 
principle  seems  not  at  all  affected,  whether  the 
courts  in  question  be  of  one  description  or  an- 
other, and  the  opinion  given  by  the  author  re- 
ferred to,  would  be  equally  applicable  to  trials 
by  an  ecclesiastical  court,  (which  is  undoubtedly 
a  legal  tribunal  for  certain  purposes,)  as  to  trials 
by  an  inferior  court-martial. 

In  a  note  to  page  326,  Captain  Simmons,  in 
27 


CHAPTER 


210  REVISION. 


CHAPTER     noticing  a  difference  of  opinion  by  Major  Vans 

Xt         Kennedy  upon  this  point,  reiterates  his  own, 

and  refers  to  a  case,  and  tlfe  opinion  of  Sir  J. 

Beckett,  judge    advocate   general,   (December, 

1828,)  in  illustration  and  support. 

The  case,  so  far  as  it  may  be  understood  by 
the  reference  in  the  note,  does  not  sustain  his 
opinion  ;  for  it  does  not  appear  that  the  trial  was 
an  illegal  one,  though  there  were  such  objection- 
able matter  with  reference  to  its  organization  or 
composition,  as  to  induce  a  recommendation  for 
the  remission  of  the  sentence,  and  restoration  of 
the  prisoner  to  duty.  It  necessarily  followed, 
therefore,  that  the  prisoner  could  not  be  brought 
to  trial  a  second  time  for  the  same  offence. 
Role.  . «  The  greatest  latitude,  it  is  believed,  which  can 

be  claimed  in  favor  of  a  prisoner  on  this  head, 
is  that  where  a  court  of  adequate  powers  has 
proceeded  to  judgment,  no  second  trial  can  have 
place — for  though  the  decision  may  be  illegal, 
and  therefore  not  binding,  still  it  was  the  act  of 
a  legitimate  court,  exercising  legal  authority,  but 
erroneous  in  result.  The  prisoner  has  by  the 
proceedings  been  in  a  legal  sense  jeopardized  in 
his  interests  or  safety,  and  he  is  not  responsible 
for  the  errors  of  the  court,  nor  while  its  powers 
were  exercised  was  his  amenability  to  punish^ 
ment  destroyed  or  diminished. 

New  trial  as  an       Where  a  prisoner  has  been  found  guilty,  con- 
act  of  mercy.  r 

trary  to  evidence  or  upon  irrelevant  or  improper 
testimony,  a  new  trial,  as  an  act  of  mercy,  may 
be  granted,  "  But  there  hath  yet  been  no  in- 
stance of  granting  a  new  trial  where  the  pris- 
oner was  acquitted  upon  the  first,"1 

i  4  Black.  Com.,  361. 


REVISION. 


211 


CHAPTER 
X. 


The  requirements  of  the  law,  as  regards  the 
action  of  the  reviewing  officer,  are  very  distinct- 
ly set  forth,  and  accordingly  no  sentence  can  be 
carried  into  execution  until  after  the  whole  of 
the  proceedings  shall  have  been  confirmed.  This 
confirmation  of  the  sentence,  by  the  officer  vest- 
ed with  the  authority  so  to  do,  is  usually  affixed 
with  his  signature  to  the  proceedings — and  the 
decision  is  announced  in  orders.  Should  the  re- 
viewing officer  disapprove  the  proceedings  of  the 
court,  he  may  direct  the  same  for  revisal,  or  ac- 
cording to  the  circumstances  of  the  case,  remit 
the  sentence  and  order  the  prisoner  to  duty. 
There  are  times  in  which  it  is  better  to  release 
the  prisoner  than  to  re-assemble  the  court  for  a 
reconsideration  of  his  case,  and  this  without 
prejudice  to  the  service.  Doubts  on  the  part  of 
the  court,  which  if  very  nicely  scrutinized  may 
not  appear  strictly  legal,  sometimes  lead  to  opin- 
ions which  the  reviewing  officer  cannot  affirm  ; 
and  yet  they  are  supported  by  such  appearances 
of  propriety,  as  to  make  very  uncertain  the 
action  of  the  court  if  the  proceedings  be  sent 
back  for  revisal.  Under  such  conditions,  if  the 
crime  charged  against  the  prisoner  be  not  of  a 
character,  taking  into  view  the  particular  time 
and  occasion  of  its  commission,  to  jeopardize 
the  principle  of  subordination  and  military  se- 
curity, it  would  be  preferable  to  dissolve  the 
court,  with  such  observations  upon  the  proceed- 
ings as  the  peculiar  case  might  justify. 

There  has  been  made  by  some  reviewing  of-  Approval  and 
ficers  a  distinction  between  the  approval  and 
confirmation  of  the  proceedings  of  courts-mar- 
tial.    All  such  distinctions  can  only  be  made 


212 


REVISION. 


CHAPTER 

*' 


Distinctive 


properly  by  the  law  itself.  Whenever  there  is 
a  doubt  as  to  the  proper  terms  to  be  employed 
to  express  the  decision  of  the  reviewing  officer, 
reference  should  be  made  to  the  statute,  and 
such  language  or  terms  be  selected  as  are  em- 
bodied therein  —  no  other  rule  is  safe.  Accord- 
ing to  the  language  of  the  65th  article  of  war, 
to  confirm  the  proceedings,  covers  by  this  term 
of  approval  all  the  doings  of  the  court  including 
the  sentence  —  and  to  disapprove  the  same,  equal- 
ly rejects  all. 

If  there  be  errors  in  the  proceedings  which 
are  not  so  grave  as  to  conflict  with  the  rights 
of  the  prisoner,  or  the  demands  of  justice  —  such 
errors  would  be  adverted  to  and  modify  the  de- 
cision of  the  reviewing  officer,  but  not  neces- 
sarily lead  to  an  absolute  disapproval  of  all  that 
the  court  had  done.  And  so  if  the  sentence 
should  be  too  inadequate,  or  on  the  contrary,  too 
severe  for  the  offence  of  which  the  prisoner  is 
found  guilty,  the  like  discretion  is  left  to  the  re- 
viewing authority  to  animadvert  upon  the  same, 
and  according  to  his  opinions  as  to  the  wants  of 
the  service,  either  send  back  for  revisal,  miti- 
gate, remit,  or  confirm  the  sentence. 

The  writer  would  by  these  remarks  endeavor 
to  present  the  fact,  that  the  use  of  distinctive 
terms  as  applied  to  the  process  of  investigation, 
and  to  the  final  opinion  of  the  court,  is  neither 
required  or  necessary,  but  that  whenever  either 
the  first  or  the  second  part  of  the  trial  is  defec- 
tive, the  reviewing  authority  may,  in  remarking 
upon  the  same,  either  confirm  or  disapprove,  ac- 
cording to  the  proprieties  of  the  case,  the  whole 
proceedings. 


REVISION.  213 

When    courts-martial    have,   upon    revision,     CHAPTER 
adhered  to  the  judgment  first  pronounced,  the         Xt 
form  above  adverted  to  has  been  most  frequent- 
ly used.     The  reviewing   officer  in  such  cases 
may,  in   order  that  the  criminal  shall  not  go 
without  punishment,  prefer  to  confirm  the  pro- 
ceedings, should  no  legal  barrier  intervene  ;  and 
where  the  first  sentence  has  been  exorbitant,  can  sentence  may 

,  .  ,  .be  partially  re- 

remit  such  portion  as  he  may  deem  excessive.  mined. 

Provocation  received  should  be  considered  by  Provocation  re- 

the  reviewing  authority,  in  determining  on  the  coMidere°d.  e 
propriety  of  mitigating  a  sentence.1 

The  duty  of  every  officer  having  authority  to  The  power  and 

,,  j.  ,.  ,.    ,     .     ,.  duty  of  review- 

review  the  proceedings  of  courts-martial,  is  lim-  ing  officer  iimi- 

ited  ;  and  he  has  power  only  to  suspend  the  ex- 
ecution of  the  sentence,  "  pardon  or  mitigate  any 
punishment  ordered  by  such  court."2  He  can- 
not alter,  or  commute  the  punishment,  even  with 
the  consent  of  the  party  sentenced. 

The  law  has  clearly  given  the  power  to  the  Pardon  or  re. 

_.  ,  ,  A  .       mission  of  pun- 

ofhcer  who   orders  a  court-martial,   except   in  ishment. 
cases  of  capital  punishment,  or  the  cashiering  or 
dismissing  a  commissioned  officer,  to  pardon,  or 
to  mitigate  any  punishment   ordered  by  such 
court-martial.     To  pardon  is  to  absolve  from 
punishment:  to  mitigate  the  punishment  is  to  Mitigation  of 
make  it  less  in  degree,  but  of  the  same  species.  F 
Beyond  this   the  reviewing  officer   cannot  go. 
Any  attempt  to  change  the  punishment  in  kind 
would  be  illegal,  and  such  an  exercise  of  author- 
ity would  be  the  assumption  of  exclusive  judi- 
cial, as  well  as  to  a  certain  degree,  of  legislative 
power.     To  commute  punishment,  is  to  substi-  commutation 
tute  for  the  one  ordered,  another  of  a  different  of  pumshment- 

»  Opinions,  p.  732.  2  89th  Article  of  War. 


214  REVISION. 


CHAPTER     kind, — to  change  the  species  ly  the  mere  will 
— .of  the  individual,  without  any  reference  to  judi- 
cial sanction. 
Remarks  upon        These  propositions  are  plain  and  simple  ;  but 

the  above ;  pro-    .     .  1,1  i 

priety  of  show-  it  is  proper  to  remark,  that  there  has  been,  and 

ing  the  reasons         .„    .  ,.  •-/>•••  i    ,• 

of  different       still  is,  a  diversity  of  opinion  in  relation  to  their 

views  - 

legal  propriety.  The  opposing  views  have  been 
sustained  by  able  and  distinguished  legal  gentle- 
men, occupying  high  places  of  trust  and  honor 
under  the  government,  and  as  such  views,  in- 
volving the  principles  here  stated,  at  the  same 
time  seein  to  contradict  their  simplicity,  or  at 
least  put  in  doubt  the  essential  fact  of  what  is 
a  mitigation  of  punishment,  or  in  what  the  com- 
mutation of  a  sentence  consists,  it  is  due  to  the 
high  and  influential  source  from  whence  they 
emanate,  that  the  reasons,  which  have  induced  a 
difference  of  opinion  on  the  part  of  the  writer, 
should  be  more  fully  developed. 
Reference  to  The  decisions  to  which  reference  is  made,  are 

decisions  in  the    .        .-,  •  i  •   i         rr-  i  i  i 

army  and  navy,  m  those  cases  in  which  othcers  have  been  ad- 
gaUty  raised  *"  judged  to  be  cashiered  or  dismissed  the  service, 
but  which  sentences  have  been  changed  by  order 
of  the  president,  to  suspension  from  rank  and 
command,  with  or  without  pay,  for  a  specified 
time.  The  question  has  accordingly  been  raised, 
and  presented  to  the  minds  of  many  members 
of  the  military  service, — Was  such  decision  or 
order  of  the  president  legal  71 

Distinct  species       There  are  two  distinct  species  of  punishment 

MffadmTt'of  authorized  by  the  military  laws,  which  admit  of 

no  degrees  of  severity.     They  are,   1.  Death ; 

2.  Cashiering  or  dismission.    These  punishments 

1  See  the  orders  in  the  cases  of  Commander  U.  P.  Levi  of  the 
Navy,  and  Capt.  Drane,  5th  Infantry. 


REVISION.  215 


X. 


are  evidently  different  in  kind,  and  are  distinct-     CHAPTER 
ively  marked  by  the  manner  in  which  the  law 
declares  for  particular  offences,  they  shall  be  in- 
flicted.    Now  it  is  argued,  therefore,  that  such  General  re- 

,  TIT  •  marks  upon  mit- 

penalties,  when  adjudged  by  a  court-martial,  ne-  igation  of  Pun- 

,      .  J    .   .  ishment. 

cessanly  can  admit  of  no  mitigation,  but  must 
be  executed,  or  entirely  remitted.  It  is  true  that 
the  substitution  of  a  lighter  punishment  is,  in  a 
certain  sense,  a  mitigation  in  favor  of  the  priso- 
ner ;  but  it  cannot  be  considered  that  mitigation 
of  the  punishment  which  is  contemplated  by 
law.  Mitigation,  in  its  legal  acceptation,  means 
a  less  degree  of  the  same  species  of  punishment; 
and  were  not  such  the  true  meaning  of  the  word 
as  there  used,  it  would  vest  in  the  hands  of  the 
reviewing  authority,  the  power  to  substitute  any 
kind  of  punishment  which,  in  his  discretion,  he 
might  deem  a  mitigated  one.  If  a  prisoner  were 
sentenced  to  suffer  death,  could  it  be  considered 
a  legal  mitigation  of  the  punishment  to  order 
the  infliction  of  any  number  of  stripes  ?  Or 
should  a  commissioned  officer  be  condemned  to 
suffer  death,  where  can  the  authority  be  found 
by  which  the  mitigated  punishment  of  cashier- 
ing might  be  substituted  ?  In  every  punishment 
admitting  of  various  degrees  of  intensity  or  se-  punishment8 
verity,  a  mitigated  form  can  be  substituted :  as, 
for  instance ;  suspension  from  rank  and  command,  lty' 
with  deprivation  of  pay,  for  one  year,  may  be 
mitigated,  in  time,  to  six  months,  or  without 
forfeiture  of  pay.  Confinement  at  hard  labor  for 
six  months,  may  be  changed,  in  time,  to  two 
months,  and  so  on.  In  such  cases  the  species 
or  kind  of  punishment  remains  unchanged,  and 
the  severity  of  the  sentence  is  mitigated  in  ac- 


216  REVISION. 

CHAPTER     cordance  with  law.     But  where  a  sentence  is 
*•         passed  which  can  admit  of  no  alteration  without 
changing  its  character,  the  only  means  to  shield 
the  criminal,  is  to  resort  to  the  power  of  par- 
doning. 

If  the  substitution  of  a  minor  penalty  is  per- 
mitted, on  the  ground  that  it  is  a  mitigation  of 
the  original  sentence,  the  discretion  of  the  re- 
viewing officer  must  be  the  means  and  guide  to 
the  selection  of  it.  If  so,  it  might  happen  under 
such  authority,  that  a  punishment  could  be  in- 
flicted which  the  law  in  no  place  recognizes  as 
the  penalty  for  any  crime.  The  fact  that  the 
punishment  is  less  onerous  or  painful  than  the 
one  adjudged  by  the  court,  is  the  basis  upon 
which  is  exercised  the  authority  to  act,  and  it 
must,  consequently,  be  equally  operative,  whe- 
ther such  mitigated  sentence  be  a  customary,  or 
acknowledged  means  of  punishment,  or  not. 
specific  punish-  Now  there  are  offences  for  which  the  law  pro- 
ri^oSmcS6  vides  a  specific  punishment, — and  courts-martial 
have  no  power  to  adjudge  any  other.  For  such 
cases,  how  can  the  sentence  be  mitigated  by  any 
change  which  the  reviewing  officer  might  desire 
to  effect?  The  discretion  of  the  president  is 
then  annulled,  and  no  authority  is  left  with  him, 
save,  to  order  the  execution  of  the  sentence,  or 
to  pardon  the  offender.1 

Power  of  the        The  president  possesses  the  power  to  pardon 
Son.  8         "  under  the  constitution,  and  is,  by  the  same  in- 
strument, made  the  commander  in  chief  of  the 
army  and  navy;    but    there    is  no  authority 
granted  any  where  to  him,  to  commute  military 

1  Case  of  2d.  Lt.  J.  H.  Carleton,  1st  Dragoons.     Gen.  Order 
No.  24,  1843. 


REVISION. 


217 


punishments ;  and  it  is  a  clear  principle,  "  that  CHAPTER 
the  president  Uas  no  powers,  except  those  which  x< 
he  derives  from  the  constitution  and  the  laws  of 
the  United  States.  By  the  constitution,  the 
president  is  made  the  commander  in  chief  of 
the  army  and  navy  of  the  United  States.  But 
in  a  government  limited  like  ours,  it  would  not 
be  safe  to  draw  from  this  provision  inferential 
powers,  by  a  forced  analogy  to  other  govern- 
ments differently  constituted.  Let  us  draw  from 
it,  therefore,  no  other  inference  than  that,  under 
the  constitution,  the  president  is  the  national  and 
proper  depositary  of  the  final  appellate  power, 
in  all  judicial  matters  touching  the  police  of  the 
army ;  but  let  us  not  claim  this  power  for  him, 
unless  it  has  been  communicated  to  him  by 
some  specific  grant  from  congress,  the  fountain 
of  all  law  under  the  constitution."1 

It  has  been  said,  that  the  change  of  a  sentence  objection  .o 

'     •)*  i       T          i  .      change  cf » 

in  the  manner  referred  to,  is  made  by  the  presi-  tence. 
dent,  not  under  the  authority  given  to  mitigate 
punishments,  but  by  virtue  of  his  prerogative  as 
the  chief  magistrate  of  the  nation.  This  an- 
swer made  to  the  objection,  yields  the  entire 
question.  But  there  is  a  solid  reply  to  this, 
which,  if  admitted,  would  concede  a  power  still 
more  objectionable  than  the  first.  The  presi- 
dent of  the  United  States  is  not,  like  the  British 
sovereign,  the  fountain  of  honor,  and  therefore 
possesses  no  power  of  the  kind.  All  his  official 
acts  derive  their  authority  from  positive  laws ; 
and  prerogative  or  inherent  right,  or  constructive 
authority,  especially  in  the  determination  of 
questions  of  criminal  justice,  is  not  acknowl- 

1  Mr.  Wirt.     Opinions,  p.  172. 
28 


218 


REVISION. 


CHAPTER 
X. 

Cannot  inflict 
arbitrary  pun- 
ishment. 


Case  of  Private 
William  Barns- 
man. 


edged,  and  would  be  adverse  to  the  principles  of 
our  government. 

It  may  also  be  remarked,  that  there  is  no 
power  lodged  with  any  military  functionary,  to 
inflict  arbitrary  punishment.  The  law  seems  to 
have  had  in  view  the  possible  exercise  of  such 
authority,  and  accordingly  has  declared,  that 
"  no  officer  or  soldier  who  shall  be  put  in  arrest, 
shall  continue  in  confinement  more  than  eight 
days,  or  until  such  time  as  a  court-martial  can 
be  assembled."  The  principle  involved  in  this 
act  of  the  national  legislature,  is  clearly,  that  no 
military  person  shall  be  subjected  to  arbitrary 
punishment,  or  without  the  intervention  of  a 
fair  and  impartial  trial  by  a  court-martial,  ac 
cording  to  the  laws  of  the  land. 

This  question,  as  to  the  right  of  the  president 
to  mitigate  sentences  of  courts-martial,  and  the 
meaning  of  the  power  to  mitigate,  has  frequently 
been  presented  for  decision. 

1.  In  the  case  of  private  William  Barnsman 
of  the  marine  corps,  who  was  adjudged  to  suffer 
death,  the  question  whether  the  President  could 
change  that  sentence  into  one  of  "  service  and  re- 
straint," &c.,  was  submitted  to  Mr.  Wirt,  Att.  Gen. 

In  the  opinion  given,  (January  4,  1820,)  it  is 
stated — "  the  power  of  pardoning  the  offence 
does  not,  in  my  opinion,  include  the  power  of 
changing  the  punishment,  but  the  power  to  miti- 
gate the  punishment  decreed  by  a  court-martial, 
cannot,  I  think,  be  fairly  understood  in  any  other 
sense  than  as  meaning  a  power  to  substitute  a 
milder  punishment  in  the  place  of  that  decreed 
by  the  court-martial,  in  which  sense  it  would 
justify  the  sentence  which  the  president  purpo- 


REVISION.  219 

ses  to  substitute  in  the  case  under  consideration.  CHAPTER 
The  only  doubt  which  occurs  to  me  as  possible  x> 
in  regard  to  this  construction,  is  whether  the 
power  of  mitigating  a  punishment,  includes  the 
power  of  changing  its  species ;  whether  it  means 
anything  more  than  lessening  the  quantity,  pre- 
serving, nevertheless,  the  species  of  the  punish- 
ment. But  there  is  nothing  in  the  force  of  the 
terms  in  which  the  power  is  given,  that  ties  us 
down  to  so  narrow  a  construction. — It  is  proper 
to  state,  however,  that  a  different  construction  is 
practically  given  to  this  power  in  the  war  de- 
partment ;  for  there  the  power  of  mitigation  is 
not  understood  as  giving  the  power  to  change 
the  punishment."1 

2.  Again,  the  question  was  presented,  arising  case  of  Major 
out  of  the  case  of  Major  William  Whistler,  2nd  tier.181 
regiment  of  infantry,  (under  the  83d  article  of 
war.)  Mr.  Berrien,  the  Attorney  General,  in 
giving  his  opinion  said :  "In  those  cases  which, 
by  the  rules  and  articles  of  war,  are  required  to 
be  submitted  to  him,  (and  the  sentences  of  a 
general  court-martial  in  time  of  peace,  and  ex- 
tending to  the  dismission  of  a  commissioned 
officer  are  among  them,)  the  whole  proceedings 
are  required  to  be  transmitted  to  the  secretary 
of  war,  to  be  laid  before  the  president,  "  for  his 
confirmation  or  disapproval,  and  orders  in  the 
case"  The  terms  indicate  an  unlimited  discre- 
tion ;  and  when  it  is  considered,  that  he  is,  by 
the  constitution,  the  depositary  of  the  pardoning 
power — that  this  is  co-extensive  with  every  spe- 
cies of  punishment,  except  only  in  cases  of  im- 
peachment, (and  perhaps  also  for  contempts 

1  Opinions,  p.  238. 


REVISION. 


CHAPTER 
X. 


Case  of  Com- 
mander Ram- 
say. 


against  either  house  of  congress,)  it  cannot,  1 
think,  be  doubted  that  he  has  authority  to  miti- 
gate, as  well  as  to  confirm  or  reject  the  sentence 
of  a  general  court-martial,  in  the  exercise  of  the 
supervisory  power  committed  to  him  by  the  act 
for  establishing  rules  and  articles,  for  the  govern- 
ment of  the  armies  of  the  United  States." 

"  It  would  be  singular,  if,  in  the  cases  which 
are  entrusted  to  the  supervision  of  a  subordinate 
officer,  (see  89th  article  of  war,)  a  power  should 
be  given  to  him  over  the  sentences  of  a  court- 
martial,  which  is  denied  to  the  commander  in 
chief,  in  those  cases  which  are  referred  to  him."1 

3.  A  more  recent  case  than  the  above  oc- 
curred, in  which  the  power  of  the  president  over 
sentences  of  courts-martial,  was  again  made  the 
subject  of  inquiry. 

Commander  William  Ramsay,  of  the  United 
States  navy,  was  tried  by  a  general  court-mar- 
tial, and  sentenced  "to  be  suspended  from  all 
rank  and  command  in  the  navy  of  the  United 
States,  for  and  during  the  period  of  five  years." 

Upon  a  review  of  the  case  in  July,  1843,  the 
president  ordered  that  the  sentence  be  "  commut- 
ed to  suspension  for  six  months,  without  pay." 

It  did  not  appear  that  the  commutation  of  the 
sentence  was  made  at  Commander  Ramsay's  re- 
quest; or  that  the  condition  was  accepted  by 
him.  After  the  expiration  of  the  sentence,  in 
April,  1845,  Commander  Ramsay  made  applica- 
tion for  his  pay,  and  the  question  then  arose — 
has  the  order  of  the  President  deprived  him  of 
his  pay,  for  the  six  months  during  which  he  was 
suspended  under  the  mitigated  sentence — or  in 

1  Opinions,  pp.  731,  732. 


REVISION.  221 

other  terms,  had  the  President  of  the  United     CHAPTER 
States  the  legal  power  to  deprive  him  of  his  pay         x' 
for  that  time  1 

On  the  10th  of  April,  1845,  it  was  referred  to 
the  Attorney  General,  the  Hon.  J.  Y.  Mason,  for 
an  opinion. 

In  examining  the  subject,  the  attorney  general 
refers  to  the  case  of  the  United  States  vs.  Wil- 
son, (Peters'  Rep.  150,)  and  the  definition  given, 
by  chief  justice  Marshall,  of  a  pardon,  and  ap- 
plying those  principles  to  the  circumstances  of 
the  case  before  him,  remarks,  that  "  the  president 
did  not  exercise  the  pardoning  power."  The  ex- 
amination of  the  subject  by  the  A.  G.  was  full 
and  able,  and  he  concluded  his  remarks  in  the 
following  language. 

"  When  an  officer  is  brought  to  trial,  and  is 
sentenced  to  be  punished,  the  executive  may 
mitigate  the  severity  of  that  punishment, — but 
there  is  a  guide — the  discretion  is  a  legal  discre- 
tion— and  the  mitigation  must  not  be  according 
to  a  capricious  will,  but  must  have  the  sanction 
of  the  judgment  of  the  court — it  must  inflict  a 
part  of  the  punishment  awarded  by  the  judg- 
ment, with  the  exception  of  those  cases  in  which 
there  is  no  degree — when  the  whole  punishment 
must  be  inflicted,  or  no  part  of  it  can  be — such 
is  the  case  of  a  sentence  of  death." 

"  I  am  constrained  to  the  opinion  therefore, 
that  Commander  Ramsay  is  entitled  to  pay  du- 
ring the  period  mentioned  in  the  4th  auditor's 
letter,  notwithstanding  the  terms  in  which  the 
president  commuted  his  sentence." — (See  Ken- 
nedy, pp.  236,  237.) 

The  above  cases  have  been  cited,  and  deemed 


222  REVISION. 

CHAPTER     sufficient  to  show  the  reasoning,  or  the  principles 
*•          upon  which  the  several  opinions,  in  regard  to 


this  subject,  have  been  founded. 
Ei?hty-ninth         It  is  well,  however,  to  remark  upon  a  fact, 

article  of  war,,        .  .    •      .  . 

and  forty-sec-    which   has   exerted   some   influence   upon   the 

«ond  article  for 

the  government  ludgment  of  tli  e  persons  called  to  the  considera- 

of  the  navy.         J 

tion  of  the  subject,  that  by  the  42nd  article  of 
the  "  Act  for  the  better  government  of  the  navy 
of  the  United  States,"  of  April  23,  1800,  the 
President  of  the  United  States  is  in  direct  terms 
authorized,  "  to  pardon  or  to  mitigate  the  pun- 
ishment decreed  by  a  court-martial"1 — whereas 
by  the  89th  article  of  war,  enacted  for  the  gov- 
ernment of  the  armies  of  the  United  States, 
April  10,  1806,  the  power  to  "  pardon  or  miti- 
gate any  punishment  ordered  by  such  court,"  is 
only  conferred  upon  "  every  officer  authorized  to 
order  a  general  court  martial."2 

But  notwithstanding  this  difference  which  ex- 
ists in  the  language  of  the  corresponding  arti- 
cles, intended  for  the  government  of  the  land  and 
of  the  naval  forces,  there  has  never  been  a  se- 
rious doubt  of  the  power  of  the  President  of  the 
United  States  to  mitigate  sentences  ordered  by 
army  courts-martial ;  and  this  because  such  au- 
thority would  of  necessity  attach  to  him  as  the 
the  -first  general  under  the  constitution  of  the 
confederacy — and  therefore  the  question  has 
really  been,  as  to  the  true  or  legal  meaning  of 
the  mitigation  of  a  sentence. 

Remarks  upon        In  the  arguments  of  the  several  attorney  gen- 
ion^0"  erals,  to  whom  the  question  has  been  referred, 
the  power  of  the  president  to  mitigate  a  sen- 

1  Roman's  Naval  Laws,  p.  66. 

2  Cross'  Mil.  Laws,  p.  120. 


REVISION.  223 

tence,  by  substituting  a  lighter  punishment  of  a     CHAPTER 

different  species,  has  been  claimed  as  a  matter ^: 

of  expediency  or  convenience,  and  not  as  the  di- 
rect inference  of  any  legal  or  constitutional  pow- 
ers. And  in  one  opinion  quoted  (2),  it  is  said  to 
exist  in  all  cases,  except  in  cases  of  impeach- 
ment, (which  is  a  provision  of  the  constitution,) 
and  perhaps  also  for  contempts  against  either 
house  of  Congress" — which  is  the  mere  notion 
of  propriety  of  the  writer. 

But  it  must  be  observed  that  the  defect  of  the  Defector  a  law 
law  or  the  laws,  does  not  cure  itself;  and  while 
we  most  readily  admit  that  such  power,  with 
certain  limitations,  would  be  rightly  invested  in 
the  executive,  and  thereby  in  all  such  cases 
enable  him  to  execute  justice  in  mercy,  still  as 
the  authority  has  not  been  given,  it  cannot  of 
course  be  exerted. 

Another  objection  against  the  exercise  of  such  objection  to  the 

J  commutation  of 

authority  under  the  existing  laws  is,  that  it  de-  sentences. 
stroys,  if  conceded,  the  uniformity  of  a  legal 
rule,  and  therefore  the  law  is  rendered  capri- 
cious. It  has  never  yet  been  maintained,  that 
an  officer  having  the  power  to  pardon  or  miti- 
gate the  sentence  of  a  court-martial  (the  sen- 
tence of  death,  or  of  cashiering  an  officer  are 
excepted  by  the  89th  article  of  war)  could  mit- 
igate such  sentence  by  substituting  another  pun- 
ishment of  a  different  species,  but  milder  in 
character,  nor  has  it  ever  been  pretended  that 
the  president  could  change  the  kind  of  punish- 
ment when  mitigating  a  sentence  of  any  descrip- 
tion. Now  if  the  authority  to  act  is  thus  re- 
strained in  one  instance — and  for  which  there  is 
no  special  provision  by  law — why  should  it  not 


224  REVISION. 

CHAPTER     be  equally  restrained  in  all  other  cases,  where 
x'         legislation  has  not  permitted  a  wider  discretion  1 


If  the  president  is  to  measure  his  authority  by 
the  particular  circumstances  of  cases,  it  is  evi- 
dent that  the  rule  is  destroyed,  and  the  only 
means  left  for  his  guidance  is  his  own  discretion 
— and  yet  the  only  answer  which  has  been 
given,  or  can  be  given  to  the  interrogatory  above 
is,  that  it  is  convenient  or  expedient  for  the 
president  to  exercise  such  powers. 

Powers  of  pres-       The  leading  principle  for  the  government  of  the 
from  the  consti-  executive  department  is,  that  the  president  pos- 

tution  and  the  , 

laws.  sesses  no  powers  but  what  are  derived  from  the 

constitution  and  the  laws ;  and  bearing  this  max- 
im in  mind,  should  we  refer  to  the  country,  from 
whence  our  fundamental  laws  were  received,  it 
will  be  seen  that  in  analogous  cases,  the  British 
sovereign  is  not  permitted  to  commute  the  pun- 
ishment of  death  decreed  by  a  court-martial  to 
transportation  for  life  or  a  term  of  years,  with- 
out the  express  sanction  of  parliament1 — and 
were  the  rule  endeavored  to  be  sustained, 
against  which  the  writer  now  argues,  conceded, 
it  would  invest  the  head  of  a  republic,  with 
power  which  is  denied  to  a  kingly  ruler — admit 
a  principle  in  a  government  whose  inception 
was  based  upon  the  limitation  of  arbitrary 
sway,  which  is  rejected  by  the  laws  of  a  mon- 
archy! Surely  then,  under  this  view  of  the 
subject,  the  right  claimed  for  the  chief  magis- 
trate of  the  nation,  is  opposed  to  the  entire  his- 
tory and  purposes  of  our  civil  polity. 

It  is  a  well  understood  maxim  of  law,  that 
the  sentence  adjudged  against  a  prisoner  cannot 

1  Mutiny  Act. 


REVISION.  225 


X. 


be  commuted,  or  changed  by  substituting  a  pun-  CHAPTER 
ishment  of  another  kind  in  its  place ;  and  this  is 
founded  upon  good  reasons,  as  such  power  would 
necessarily  divest  punishments  of  judicial  sanc- 
tion. The  power  which  is  conveyed  by  the 
statute,  to  pardon  or  mitigate  any  sentence  or- 
dered by  a  court-martial,  does  not,  therefore, 
give  the  power  to  commute  such  sentences, — for 
a  very  material  difference  exists  between  them. 
Pardon  or  remission  of  a  sentence  relieves  the 
convict  from  the  pains  or  penalty  denounced 
against  him ;  and  mitigation  lessens  the  amount 
of  punishment,  though  the  part  which  is  inflict- 

.        A  Punishment  in- 

ed  is  authorized  by  the  judgment  or  sentence  of  meted  to  be  au- 

.,  .  „  .  thorized  by  the 

the  court.     Considerations  of  mercy  enter  into  judgment  of  the 

.   J  court. 

the  exercise  of  these  powers,  and  they  cannot  be 
employed  to  the  prejudice  of  others.  But  the 
power  to  commute  necessarily  implies  the  power 
of  causing  the  infliction  of  an  arbitrary  punish- 
ment, which  has  not  previously  received  the 
sanction  of  any  judicial  tribunal.1 

Further,  it  may  be  remarked,  that  the  power  Power  to 
to  pardon  "  offences  against  the  United  States," 
given  to  the  president  by  the  constitution,  does 
not  imply,  or  include  the  power  to  mitigate  judi- 
cial sentences ;  or  else,  the  subsequent  provisions 
of  law2  would  be  altogether  supererogatory ;  and 
hence  it  seems  necessary  to  consider  the  words 
"  to  mitigate  any  punishment,"  as  technical,  and 
meant  to  authorize  the  president,  only  to  lessen 
the  amount,  but  preserving  the  kind,  or  species 
of  punishment  decreed  by  the  court. 

1  Kennedy,  p.  239. 

2  42d  Article  of  Regulations  for  the  Navy,  and  89th  Article  of 
War. 

29 


226 


REVISION. 


CHAPTER 
X. 


Proceedings  of 
courts-martial 
not  subject  to 
review  by  an- 
other court. 


If  the  pardoning  power  was  not  vested  in  the 
executive  by  the  constitution,  or  the  laws,  it  is 
evident  that  he  could  not  dispense  justice  in 
that  form ;  and  if  the  pardoning  power  included 
likewise  the  power  to  commute  sentences,  there 
would  be  no  purpose  or  object  attained  in  giving 
him  a  special  authority  to  mitigate  such  sen- 
tences. It  is  believed  that  this  power  has  never 
been  conceded,  in  matters  pertaining  to  the  civil 
departments  of  life,  under  any  system  of  Ameri- 
can or  English  jurisprudence,  to  the  head  or  ex- 
ecutive of  any  government ; — for  such  concession 
would  be  to  put  the  arbitrary  will  or  discretion 
of  an  individual  in  opposition  to  the  declared 
sanctions  of  the  law,  while  no  such  will,  or  dis- 
cretion, had  been  acknowledged  by  legislative 
enactment ! 

Such  are  the  views  of  the  author  in  regard  to 
this  question,  and  the  principles  and  reasoning 
which  have  led  him  to  the  conclusions  ex- 
pressed in  the  foregoing  pages ;  and  it  is  with 
great  deference,  and  hesitation,  considering  the 
weight  of  authority  by  which  a  contrary  opinion 
has  been  maintained,  that  he  now  submits  them 
for  the  consideration  of  the  reader. 

The  proceedings  of  a  court-martial  having 
been  finally  disposed  of  by  the  officer  ordering 
the  court,  are  not  liable  to  be  reviewed  by  any 
other  authority — that  is,  there  is  no  court  in 
which  any  appeal  against  the  sentence  of  a 
court-martial  can  be  brought,  nor  in  which  it 
may  be  revised.1 

The  officer  (of  the  required  rank)  who  suc- 

i  With  the  exception  of  the  right  of  appeal  from  the  judgment 
of  a  regimental  court-martial,  under  the  35th  Article  of  War. 


REVISION.  227 


ceeds,  in  command,  to  a  general  commanding  an     CHAPTER 
army,  or  a  colonel  commanding  a  department, 
occupies  the  same  position   in  relation  to  all 
judicial  functions,1  and  may  exercise  the  same 
powers  as  his  predecessor :    but  although  this 


successor  may  pardon  or  mitigate  any  punish-  Predecessor- 
ment  (excepting  sentences  of  death,  and  cashier- 
ing a  commissioned  officer)  which  has  been  or- 
dered by  a  court-martial,  and  approved  or  con- 
firmed by  the  first,  still  he  may  not  arraign  or 
impugn  the  propriety,  or  motives  which  induced 
the  first  decision.  The  legal  discretion  to  decide 
having  been  invested  in  the  first,  his  confirma- 
tion of  the  proceedings  is  decisive,  and  the  trial 
thereby  completed.  Should  it  appear  that  an 
error  has  been  committed,  the  remedy  for  the 
wrong  is  to  be  found  in  the  power  to  pardon  or 
mitigate  the  sentence;  but  an  examination  or 
review  of  the  reasons  and  acts  of  the  previous 
commander  is  not  allowable.2 

The  proceedings,  or  record  of  every  court-  Record  depos- 

A  ITT  ,.1        ited  i11  the  wal 

martial,  are  sent  to  the  head  quarters  of  the  department. 
officer  by  whose  authority  the  court  was  ap- 
pointed, and  finally  deposited  in  the  war  depart- 
ment ;  where,  upon  demand  of  the  party  tried, 
or  by  any  person  in  his  behalf,  a  copy  of  the 
sentence  and  proceedings  of  the  court-martial 
will  be  furnished.3 

In  connection  with  the  subject  just  considered, 
there  is,  incidentally,  presented  to  our  notice 
another  of  vast  importance,  and  one  in  which 

1  65th  Article  of  War. 

2  See  case  of  Assistant  Surgeon  Stevenson,  Eastern  Depart- 
ment, Order  of  April  4,  1829,  in  which  this  principle  seems  to 
have  been  to  some  degree  overlooked. 

3  90th  Article  of  War. 


228  REVISION. 

CHAPTER     every  officer  of  the  army  and  navy  has  a  high 
*•         and  abiding  interest.     From  the  intrinsic  im- 


"rto 


portance  of  it,  the  various  and  conflicting  opin- 
^  ions  which  exist  in  relation  to  it,  even  in  the 
military  service ;  and  the  views  under  which  it 
was  supposed  to  have  had  a  partial  settlement, 
as  well  as  the  practice  which,  to  a  limited  ex- 
tent, has  obtained, — the  writer  is  induced  to 
present  it  to  the  consideration  of  the  reader. 

The  question  then,  which  is  now  to  be  con- 
sidered for  a  brief  space,  is  as  to  the  legal  right 
of  the  president  of  the  United  States  to  dismiss 
from  the  service,  without  trial,  a  commissioned 
fficer  of  the  army  or  navy. 

This  power  has  been  assumed  for  the  presi- 
dent, and  acted  upon  in  various  instances  ;  and 
^  apparently  relying  altogether  upon  the  basis  of 

a  construction  given  to  the  constitution  by  con- 
gress, on  the  first  organization  of  the  govern- 
ment. The  question  then  was,  whether  the 
president  could  dismiss  from  office,  persons  who 
were  appointed  by  and  with  the  consent  of  the 
senate,  without  the  consent  of  the  senate,  like- 
wise, to  such  removal.  Such  was  the  construc- 
tion of  the  constitution  while  it  was  pending  for 
ratification  before  the  state  conventions,  by  the 
" Federalist"  and  it  is  therein  observed :  " The 
consent  of  the  senate  would  be  necessary  to  dis- 
place as  well  as  to  appoint ;"  and  that,  "  those 
who  can  best  estimate  the  value  of  a  steady  ad- 
ministration, will  be  most  disposed  to  prize  a 
provision,  which  connects  the  official  existence 
of  public  men  with  the  approbation  or  disappro- 
bation of  that  body,  which,  from  the  greater  per- 
manency of  its  own  composition,  will,  in  all 

i 
*JkU 


REVISION.  229 

probability,  be  less  subject  to  inconstancy  than     CHAPTER 
any  other  member  of  the  government."1  x> 

In  organizing  the  departments  of  the  execu- 
tive, the  question,  in  what  manner  the  high  offi- 
cers who  filled  them  should  be  removeable,  came 
on  to  be  discussed. 

In  a  committee  of  the  whole  house  on  the  bill 
"  to  establish  an  executive,  department,  to  be  de- 
nominated the  department  of  foreign  affairs,"  (af- 
terwards denominated  the  department  of  state,) 
Mr.  White  moved  to  strike  out  the  clause  which 
declared  the  secretary  to  be  removeable  by  the 
president. 

It  was  contended,  that  such  power  was  not 
placed  in  the  president  alone. 

"  In  the  power  over  all  the  executive  officers, 
which  the  bill  proposed  to  confer  upon  the  presi- 
dent, the  most  alarming  dangers  to  liberty  were 
perceived.  It  was  in  the  nature  of  a  monarchi- 
cal prerogative,  and  would  convert  them  into 
the  mere  tools  and  creatures  of  his  will.  A  de- 
pendence so  servile  on  one  individual,  would 
deter  men  of  high  and  honorable  minds  from  en- 
gaging in  the  public  service  ;  and  if,. contrary  to 
expectation,  such  men  should  be  brought  into 
office,  they  would  be  reduced  to  the  necessity  of 
sacrificing  every  principle  of  independence  to 
the  will  of  the  chief  magistrate,  or  of  exposing 
themselves  to  the  disgrace  of  being  removed 
from  office,  and  that  too  at  a  time  when  it  might 
be  no  longer  in  their  power  to  engage  in  other 
pursuits." 

On  that  part  of  the  constitution  which  vests 
the  executive  power  in  the  president,  the  friends 

1  Federalist,  No.  77. 


230  REVISION. 


CHAPTER  of  the  original  bill  founded  their  arguments  prin- 

*' cipally ;  and  the  amendment  was  negatived  by  a 

majority  of  thirty-four  to  twenty. 

Subsequently  the  bill,  on  motion  of  Mr.  Ben- 
son, (seconded  by  Mr.  Madison)  was  so  amend- 
ed, as  clearly  to  imply  the  power  of  removal  to 
be  solely  in  the  president.  The  amendment 
was  adopted,  and  the  bill  passed  into  a  law.1 

Such  was  the  declaration  of  the  opinion,  upon 
the  subject,  by  congress.  If  we  look  to  the  re- 
marks, quoted  above,  against  the  acknowledg- 
ment of  such  authority  in  the  hands  of  the  pres- 
ident, we  cannot  but  be  struck  by  their  peculiar 
appropriateness  to  officers  of  the  military  ser- 
vice ;  and  if  the  question  in  debate  had  had 
reference  to  them,  (which  it  had  not,  but  was 
exclusively  pertaining  to  officers  of  the  execu- 
tive, civil  departments  of  the  government,)  they 
could  not  have  been  more  just  and  forcible.  In 
the  condition,  obligations,  duties  and  rights  (either 
inferentially  deduced,  or  by  express  legal  provis- 
ions,) of  military  persons,  and  those  occupying 
places  iii  the  civil  departments,  we  perceive  so 
wide  a  difference  and  strong  a  contrast,  that  the 
argument  above  referred  to  is  pointedly  apposite. 
The  first  occupy  a  very  different  position,  both 
from  the  nature  of  their  employment,  and  the 
means  of  their  regulation  or  government,  from 
the  latter,  who  fill  places  of  civil  trust.  To 
such  as  the  discussion,  at  the  time  alluded  to, 
had  special  reference,  they  were  appointed  by 
the  president  as  aids  in  the  administration  of  the 
government,  and  for  the  proper  and  becoming 

i  Marshall's  Life  of  Washington,  Vol.  V.,  chap,  iii.,  pp.  196 


REVISION.  231 

exercise  of  all  its  powers  he  is  justly  held  re-     CHAPTER 
sponsible ;  and,  therefore,  it  was,  in  reference  to  _      *' 
civil  officers,  conceded,  that  for  the  faithful  exe- 
cution of  the  law,  the  power  of  removal  was 
incidental  to  that  duty,  and  might  often  be  re- 
quisite to  fulfil  it. 

But  there  is  and  can  be,  no  necessity  for  a  like 
concession  of  right  to  the  executive,  in  relation 
to  the  members  of  the  military  service.  They 
are  but  the  mere  actors  in  a  subordinate  sphere ; 
harmony  of  opinions  between  them  and  the  ex- 
ecutive is  not  requisite  for  any  administrative 
act  or  measure  of  government ;  and  though  the 
president  is  responsible  to  the  nation  for  the 
general  direction  of  the  military  forces,  yet  he  is 
not  so  for  their  individual  conduct;  because 
every  officer  in  his  personal  relations  to  the 
government,  is  made  a  part  of  a  legally  organ- 
ized body,  and  held  accountable  for  his  acts  by 
a  distinct  penal  code,  which  has  provided  the 
means  of  trial,  and  mode  of  punishment,  for 
every  breach  of  discipline  and  good  order,  and 
for  every  misdemeanor  or  crime,  of  which  he 
may  be  guilty. 

There  is  no  other  particular  class  of  men,  for 
whom  legislation  has  prescribed  a  specific  regu- 
lation ;  and  therefore,  it  seems  to  be  a  just  con- 
clusion, that  for  any  offence  or  offences,  contem- 
plated by  such  regulation,  (and  the  military 
statutes  cover  the  entire  conduct  of  commis- 
sioned officers,  of  the  army  and  navy,)  they  can 
only  be  tried  or  punished,  in  the  manner  in 
which  the  law  declares  they  shall  be  tried  and 
punished. 

But  the  legislative  construction  of  the  consti- 


232  REVISION. 

CHAPTER  tution,  as  referred  to  above,  has  ever  since  been 
*•  acquiesced  in,  and  acted  upon,  as  of  decisive 
authority  in  the  case  ;  still,  it  is  to  be  remarked, 
as  a  striking  feature  which  distinguishes  the 
rule,  that  the  power,  by  which  it  is  made  ope- 
rative, is  purely  inferential. 

In  commenting  upon  the  powers  of  the  pre- 
sident, a  very  eminent  jurist,1  in  reference  to 
this  question,  makes  these  observations : — 

"  This  question  has  never  been  made  the  sub- 
ject of  judicial  discussion,  and  the  construction 
given  to  the  constitution  in  1789,  has  continued 
to  rest  on  this  loose  incidental  declaratory  opin- 
ion of  congress,  and  the  sense  and  practice  of 
government  since  that  time.  It  may  now  be 
considered  as  firmly  and  definitely  settled,  and  I 
entertain  no  manner  of  doubt  of  the  good  sense 
and  practical  utility  of  the  construction.  It  is, 
however,  a  striking  fact  in  the  constitutional  his- 
tory of  our  government,  that  a  power  so  trans- 
cendent as  that  is,  which  places  at  the  disposal 
of  the  president  alone,  the  tenure  of  every  exe- 
cutive officer  appointed  by  the  president  and 
senate,  should  depend  upon  inference  merely, 
and  should  have  been  gratuitously  declared  by 
the  first  congress,  in  opposition  to  the  high  au- 
thority of  the  Federalist ;  and  should  have  been 
supported  or  acquiesced  in  by  some  of  those  dis- 
tinguished men  who  questioned  or  denied  the 
power  of  congress,  even  to  incorporate  a  na- 
tional bank." 

It  is  very  evident,  from  the  above  extract,  that 
the  distinguished  writer  doubted  the  legal  pro- 
priety of  the  construction  adopted  by  congress, 

1 1  Kent's  Commentaries,  290. 

v 


REVISION.  233 

though  he  is  willing  to  acquiesce  in  the  decision     CHAPTER 
from   considerations  of   public   expediency,   or         x* 
practical  utility  ;  still  the  views  here  expressed, 
must  have  reference  to  executive  officers  of  the 
civil  departments,  and  the  authority,  granted  by 
the  interpretation  given,  should  therefore  be  ap- 
plicable to  no  other  class. 

But  the  same  expediency,  or  practical  utility, 
does  not  exist  in  the  case  of  officers  of  the  mili- 
tary departments  of  the  government,  and  from 
which  the  rule  or  construction,  as  applicable  to 
other  descriptions  of  public  functionaries,  derives 
much  of  its  vitality — and  this  because  the  le- 
gally established  tribunal  can  always  be  con- 
voked for  the  doing  of  justice,  in  the  manner 
pointed  out  by  the  laws,  in  all  cases  of  military 
delinquencies ;  or,  if  delay  be  of  necessity,  it  can 
only  be  in  times  of  unusual  and  extraordinary 
emergencies,  and  even  then  of  no  very  long  con- 
tinuance. 

The  following  cases  may  serve  to  illustrate 
more  forcibly,  the  propriety,  safety  and  justice, 
of  referring  at  all  times,  to  the  regularly  ap- 
pointed court  for  the  administration  of  military 
justice. 

1.  Consequent  to  the  investigation  of  a  court 
of  inquiry,  held  in  July,  1821,  Captain  Daniel  D'Curtis- 
Curtis,  of  the  second  regiment  of  infantry,  was 
dismissed  the  service  by  order  of  President 
Monroe,  October  16, 1821.  And  on  the  8th  day 
of  the  following  April,  no  promotion  having  been 
in  the  meantime  made  to  his  place,  he  was  re- 
stored, at  his  own  request,  to  the  army,  by  the 
president,  for  trial.  On  the  17th  April,  1822,  a  ' 
general  court-martial  was  appointed,  before 

30 


234  REVISION. 

CHAPTER     which  he  was  arraigned,  and  triea,  and  being 

*•         duly  convicted  of  the  offences  alleged  against 

him,  was   sentenced  to   be  cashiered  :  —  which 

sentence  was  duly  confirmed  by  the  president, 

and  carried  into  execution. 


of  Major      2.  A  court  of  inquiry  was  instituted  in  the 

William  Gates.  .  _    1  oo/,  .  . 

spring  of  18.36,  to  investigate  certain  imputa- 
tions against  Major  William  Gates,  of  the  1st 
regiment  of  artillery  ;  and  upon  the  proceedings 
of  the  court,  he  was  dismissed  the  service,  June 
7th,  1836,  by  order  of  President  Jackson.  Upon 
further  consideration  of  the  case,  Major  Gates 
was  re-appointed  a  major  in  the  2nd  regiment 
of  artillery,  to  date  with  his  former  commission, 
which  re-appointment  was  confirmed  by  the  sen- 
ate; and  a  general  court-martial  having  been 
appointed,  February  7th,  1837,  for  his  trial,  he 
was,  after  a  patient  investigation  of  the  charges 
preferred  against  him,  found  not  guilty,  and 
honorably  acquitted  ! 

The  above  cases  may  present  the  rule  now 
advocated  in  a  favorable  light.  In  the  first  in- 
stance, it  is  perceived,  that  there  was  not  a  ne- 
cessity for  dismissing  the  officer  without  trial,  as 
a  court-martial  was  readily  assembled,  which,  in 
its  procedure,  sanctioned  by  its  sentence,  a  pro- 
per punishment,  and  vindicated  the  discipline  of 
the  service.  No  right  was  thereby  restrained, 
no  wrong  inflicted,  but  on  the  contrary,  by  sub- 
mitting the  case  to  a  legal  tribunal,  private  in- 
terests were  protected,  and  public  justice  satis- 
fied. 

But  in  the  second  instance,  although  there 
was  a  parallelism  in  many  features  with  the 
other,  yet  in  the  results  there  was  a  wide  di- 


REVISION.  235 

vergency.  Upon  precisely  the  same  description  CHAPTER 
of  preliminary  proceedings,  a  like  command  had  x> 
been  given  that  the  accused  should  be  stricken 
from  the  rolls  of  the  army;  and  yet,  in  the  lat- 
ter case,  when  an  appeal  was  made  to  a  general 
court-martial,  and  which  court  might  have  been 
at  any  previous  time  assembled  without  diffi- 
culty, how  different  the  judgment !  Circum- 
stances, facts,  and  arguments,  were  then  pre- 
sented, which,  in  the  less  formal  conduct  of  a 
mere  inquiry  had  been  overlooked  or  disregard- 
ed ;  and  the  verdict  of  the  court  in  saving  an 
officer  from  poverty  and  disgrace,  exemplified  in 
that  emphatic  fact,  the  justice  of  the  law, — the 
law  to  which  every  officer  looks  for  protection — 
by  which  the  just  measure  of  his  conduct  is  de- 
termined, or  the  penalty  for  crime  apportioned  ! 

The  author  had  proceeded  thus  far,  when  the  Letter  to  se- 
following  able  paper,  addressed  to  the  secretary  JS^H  Osfubjc! 
of  war,  under  date  of  April  23,   1845,  by  a 
highly  distinguished  citizen  was  furnished  ;l  and 
being  kindly  permitted  to  introduce  the  same  to 
the  notice  of  the  reader,  he  now  would  make  a 
becoming  acknowledgment  of  the  same. 

The  opinion  thus  presented,  will  be  seen  to 
cover  more  in  detail  the  question  in  discussion  ; 
is  reasoned  with  logical  precision,  and  stated  in 
simple  and  vigorous  language. 

The  papers  submitted,  and  upon  which  the 
argument  is  presented,  are, 

1.  Letter  from  a  gentleman  of  Springfield, 
Massachusetts,  April  18,  1845,  claiming  for  the 
president  the  right  to  dismiss  the  store-keeper 
there ; — 2.  Letter  dismissing  Mr.  Charles  Little, 

1  Major-general  Winfield  Scott. 


236  REVISION. 

CHAPTER     store-keeper,  August  28, 1835; — and,  3.  Opinion 

x<         of  Mr.  Attorney  General  Butler,  February  25, 

1837,  on  which  Mr.  Little  was  restored  to  office. 

The  writer  thus  remarks  : — 
Opinion  &nd  ar-       "  These  papers  have  been  referred  to  me  by 

gument,  ™ 

the  secretary  of  war.  They  present  a  grave 
question — one  that  has  been  little  discussed,  and 
only,  as  far  as  I  know,  between  President  Adams 
and  myself  in  1828.  On  that  occasion  the  pres- 
ident practically  admitted  his  want  of  power  to 
dismiss,  without  a  judicial  sentence  to  that  effect. 

"  I  am  aware  that  many  presidents  have  ex- 
ercised the  power  in  question.  But  a  strong 
negative  is  found  in  the  fact  that  every  officer  so 
dismissed  from  the  army,  has,  on  a  demand  to 
that  effect,  been  restored  and  allowed  the  ben- 
efit of  a  trial  by  his  peers !  The  dismissed  offi- 
cers who  neglected  to  make  such  demand,  and 
who,  therefore,  were  never  restored,  probably 
looked  upon  their  arbitrary  dismission  as  an  act 
of  mercy  to  themselves  respectively,  as  covering 
up  the  details  of  guilt  and  shame  which  other- 
wise would  have  gone  on  judicial  record  and 
been  made  perpetual. 

"  I  do  not  mean  to  discuss  the  question  of ' re- 
movals,' or  the  power  to  dismiss  from  the  public 
service  in  general.  Tliat  has  been  elaborately 
argued  and  reviewed  at  different  periods,  and 
perhaps  yet  remains  an  open  question.  I  shall 
confine  this  brief  to  the  tenure  of  the  commis- 
sioned officers  of  the  army,  which  rests  on  spe- 
cial grounds. 

"  An  army  in  a  republic,  it  will  be  admitted, 
is  a  delicate — nay,  a  most  dangerous  machine, 
unless  held  in  the  strictest  discipline — i.  e.,  in  the 


REVISION.  237 

strictest  obedience  to  the  constitution  and  the     CHAPTER 
laws.     It  is  equally  essential  to  the  good  of  a         x> 
republic,  that  its  army  should   also  not  be  a 
slavish  machine ;  that  all  arbitrary  and  capricious 
action  over  it  should  be  excluded ;  that  it  be  at 
all  times  under  the  government  of  fixed  and 
constitutional  authority.     Misera  est  se?*vitus  ubi 
jus  est  aut  vagum  aut  incognitum. 

"  l  The  government,  [with  us  the  legislature,] 
ought  precisely  to  determine  the  functions,  du- 
ties, and  rights  of  military  men — soldiers,  offi- 
cers, chiefs  of  corps',  generals.' —  Vattel. 

" {  The  congress  shall  have  power  to  make 
rules  for  the  government  and  regulation  of  the 
land  and  naval  forces.' 

"  This  power  was  taken  up,  and  for  the  time 
being  in  respect  to  the  army  exhausted  by  the 
act  (commonly  called  the  rules  and  articles  of 
war1)  of  April  16,  1806. —  Cross1  Mil.  Laws,  pp. 
107,  123. 

"  It  is  of  the  very  essence  of  { rules  for  the 
government  of  the  public  forces  that  they 
should  define  and  prohibit  offences — prescribe 
penalties,  and  in  addition,  designate  the  tribunal 
which  is  to  ascertain  such  offences  and  apply 
the  prescribed  penalties. 

"  Now  all  this  is  clearly  done  in  the  act  of 
1806.  Congress  has  therein  carefully  enume- 
rated and  defined  every  possible  act  which  it 
chose  to  consider  an  offence  in  the  military 
state,  or  land  forces;  and,  to  exclude  all  arbi- 
trary action,  has  placed  in  juxtaposition  with 

i  Established,  by  the  old  congress,  June  30,  1775,  November  7, 
1775,  September  20,  1776,  &c.,  &c.,  which  were  recognized  un- 
der the  constitution  by  the  act,  Sept.  29,  1789. — Gross,  p.  41. 


238  REVISION. 

CHAPTER  each  and  every  offence  so  created — in  the  same 

-'. article — the  tribunal  (a  court  martial  and  not 

the  president)  to  judge  the  alleged  offence  and 
to  apply  the  prescribed  punishment.  How  can 
that  connection,  in  a  constitutional  act,  and 
therefore  part  of  the  '  supreme  law  of  the  land,' 
be  legally  dislocated,  (except  by  another  such 
act,)  and  the  president  seize  upon  a  jurisdiction 
so  carefully  lodged  in  other  hands  ? 

"A  remarkable  legislative  construction,  sup- 
porting— nay,  establishing  my  view  of  the  power 
in  question — is  found  in  the  '  act  concerning  the 
disbursement  of  public  money,'  Jan.  31,  1823, 
sect.  3,  Cross,  p.  216.  Here  an  offence,  pre- 
viously created  and  made  punishable  only  by  a 
court,  under  the  39th  art.  of  war  (Cross,  p.  114) 
is,  by  special  dislocation,  to  '  be  promptly  re- 
ported to  the  president  of  the  U.  S.  and  [the 
offender]  dismissed  from  the  public  service.' 
(This  power  has,  in  the  case  of  quartermaster 
Captain  Davis,  been  exercised  within  a  week. 
The  dismission  could  only  have  been  summarily 
made  by  direction  of  law.) 

"  General  courts-martial  must,  under  the  64th 
article  of  war,  (Cross,  p.  117,)  consist  of  from 
five  to  thirteen  members,  each  taking  an  oath 
(69th  article)  to  '  try  and  determine'  according 
to  the  rules  and  articles,  '  and  if  any  doubt  shall 
arise,  not  explained  by  the  said  articles,  accord- 
ing to  your  conscience,  the  best  of  your  under- 
standing, and  the  customs  of  war  in  like  cases,'  or 
what  may  be  termed  the  common  law  of  the 
army. 

"  This  common  law  is  recognized  by  Mr.  At- 
torney General  Wirt,  April  5, 1824.  And  again, 


REVISION. 


239 


Feb.  20,  1828,  he  distrusts  his  '  own  judgment'     CHAPTER 

in  reference  to  { the  existing  usage  and  practice — 

of  the  army,  known  only  to  military  men.' — 
Opinions  of  Attorneys  General,  pp.  489,  596. 

"  No  sentence  of  a  court  martial,  '  in  time  of 
peace,  extending  to  the  loss  of  life  or  the  dismis- 
sion of  a  commissioned  officer,  or  which  shall — 
either  in  time  of  peace  or  war — respect  a  gene- 
ral officer,  be  carried  into  execution  until  after 
the  whole  proceedings  [of  the  court]  shall  have 
been  laid  before  the  president  of  the  U.  S.  for 
his  confirmation  or  disapproval,  and  orders  in  the 
case.' — 65th  article,  Cross,  p.  117. 

"  Here  is  extreme  care  taken  by  congress  of 
the  commission  of  an  officer — often  more  dear  to 
him  than  life — even  after  it  has  been  submitted 
to  the  judgment  of  his  peers. 

"  In  respect  to  the  army  and  navy,  the  pres- 
ident is  only  the  '  first  general  and  admiral  of  the 
Confederacy'  Federalist,  No.  69,  by  General 
Hamilton — written  in  1788,  pending  the  ques- 
tion— shall  the  constitution  be  adopted  7  in  or- 
der to  dispel  the  fear  that  the  president  would 
become,  like  George  III,  the  fountain  of  all 
honor  and  power  over  the  army  and  navy.  In- 
deed it  was  only  as  the  '  first  general'  that  the 
president  ever  appointed  a  general  court-martial 
down  to  1830  ;  for  the  65th  article  of  war  only 
gives  that  power,  in  terms — to  '  any  general  com- 
manding an  army,  or  colonel  commanding  a  sep- 
arate department.'  In  a  certain  class  of  cases, 
provided  for  in  the  new  and  anomalous  act, 
May  29, 1830,  sect.  1.,  (Cross,  p.  225,)  the  power 
to  appoint  courts  is  first  given  to  the  president 
in  terms. 


240  REVISION. 

CHAPTER  "  What  power  nas  the  '  first  general/  or  any 
*•  officer,  over  the  army,  except  such  as  is  clearly 
derived  from  the  constitution  or  laws  ? 

"  In  all  cases  (except  those  arising  under  the 
act  of  1823,  respecting  the  settlement  of  ac- 
counts) it  has  been  shown  that  trial  by  a  court, 
is  as  much  a  part  of  the  rules  and  articles  of 
war  as  the  offences  therein  severally  created,  or 
the  punishments  to  be  decreed. 

"  Suppose  a  court  sentence  an  officer  to  a 
year's  suspension ;  would  any  president  think 
of  substituting  the  higher  punishment  of  dis- 
mission ? 

"But  it  may  be  contended  that  if  the  president 
cannot  summarily  dismiss  for  any  statutory  of- 
fence, other  than  that  created  by  the  act  of  1823 
(non-settlement  of  accounts)  he  may,  neverthe- 
less, exercise  that  power  without  the  assign- 
ment of  any  cause. 

"  Besides  the  reply  that  no  such  case  has  ever 
occurred  in  the  army — that  attribution  of  pre- 
rogative to  the  president  would  give  him  a 
power  over  an  unaccused  and  innocent  officer, 
which  he  could  not  have  exercised  over  the 
greatest  and  most  apparent  guilt — the  coward- 
ice or  treason  of  a  Hull !  The  surrenderor  of 
Detroit  was  tried  by  a  general  court-martial, 
and  was  only  dismissed  in  mitigation  of  the  sen- 
tence ichich  doomed  him  to  die ! 

"  The  5th  amendment  of  the  constitution,  only 
excepts  from  a  preliminary  presentment  by  grand 
juries,  cases  arising  in  the  land  or  naval  forces ; 
and  does  not  take  away  from  their  officers  the 
benefit  of  a  trial  in  chief  by  their  respective 
peers. 


REVISION.  241 

t 

"Mr.  Attorney  General  Butler's  opinion  be-     CHAPTER 
fore  me  admits  that  military  store-keepers  are         x' 
duly  'appointed  by  the  president  and  senate, 
commissioned  and  sworn.'     And  being  further 
placed  under  the  rules  and  articles  of  war,  it 
follows  that  they  are  as  much  officers  of  the 
army  as  our   generals. — (See   Army   Register, 
p.  10.) 

"  But  Mr.  Attorney  General  Butler,  speaking 
of  store-keeper  Little,  adds : — £  He  was  liable, 
like  all  other  officers,  to  be  dismissed  by  the 
president' !  Mr.  Butler  had,  evidently,  never 
investigated  the  question  of  power,  but  de- 
cides that  the  power,  in  point  of  fact,  had  not 
been  exercised,  and,  therefore,  that  Mr.  Little 
was  still  in  service ! 

"I  have  omitted  to  state  that  the  power  in 
question  has  been  claimed  for  the  president,  but 
never  exercised,  under  two  other  heads : 

"  1.  Under  the  llth  article  of  icar,  (Cross,  p. 
109.) — Every  individual  who  enters  the  army 
by  enlistment  or  by  commission,  is  held  to  re- 
main in  it,  under  the  penalty  of  being  considered 
a  deserter,  until  regularly  discharged.  Non- 
commissioned officers,  musicians,  privates,  &c., 
&c.,  (enlisted  men,),  receive  a  formal  paper  call- 
ed a  discharge,  signed  as  the  article  directs,  at 
the  end  of  the  engagement  of  each  ;  or,  if  by 
sentence  of  a  court,  the  order,  in  the  case,  is 
such  discharge.  Commissioned  officers  are  '  dis- 
charged' in  three  ways :  1.  Upon  tender  and  ac- 
ceptance of  commissions — called  resignations  ; 
2.  Partial  reductions  or  disbandments  of  the 
army,  when  all  surplus  officers  go  out,  and  are 
declared  by  the  president,  in  orders,  to  be  honor- 

31 


242  REVISION. 

CHAPTER  ably  discharged ;  3.  .Sentences  of  general  courts- 
x>  martial,  when  the  term  honorable  is,  of  course, 
omitted.  In  all  three  cases,  the  officers  are  put 
out  by  order  of  the  president  giving  the  dis- 
charges. 

11  But  it  may  be  said,  if,  in  each  class  of  the 
cases — the  last,  as  in  the  first  and  second,  the 
president  gives  the  order  of  discharge,  why  does 
the  article  specify  'by  sentence  of  a  general 
court-martial'?  Because  in  time  of  war  (see 
65th  article)  a  general  officer  in  command  of  a 
particular  army,  &c.,  &c.,  has  also  the  power  to 
discharge  a  commissioned  officer,  sentenced  to 
be  dismissed  by  such  court ;  and  but  for  the 
words,  in  the  llth,  £by  sentence  of  a  general 
court-martial,'  this  article  would  not  have  been 
in  harmony  with  the  65th. 

"The  llth  article,  therefore,  gives  no  power  to 
the  president  to  make  arbitrary  discharges  of 
officers — in  other  words  dismissions. 

"2.  The  words  found  in  every  officer's  parch- 
ment : — '  This  commission  to  continue  in  force 
during  the  pleasure  of  the  president  of  the  U.  S. 
for  the  time  being.' 

"  This  durante  bene  placito  would  seem  to  con- 
clude the  question,  and  it  certainly  would  be 
conclusive,  if  those  words  were,  in  any  manner, 
founded  on,  or  derived  from,  specific  legislation. 

"June  17,  1775,  a  committee,  appointed  for 
the  purpose,  submitted  to  congress  the  draught 
of  a  commission  for  General  Washington,  which 
was  adopted.  (Journals,  vol.  1,  p.  85.)  This 
draught,  in  all  its  formal  parts,  was  closely 
copied  from  British  commissions,  (there  were  at 
least  twenty  members  who  had  held  such,)  sub- 


REVISION.  243 

stituting  in  the  closing  words — '  This  commis-     CHAPTER 
sion  to  continue  in  force  until  revoked  by  this  or         x- 
a  future   congress.'      And   congress   then,   and 
down  to  the  adoption  of  the  present  constitu- 
tion, it  will  be  remembered,  exercised  over  the 
federal  forces,  all  the  powers  of  the  British  king 
and  parliament  united. 

"  That  draught  was  substantially  followed  in 
all  army  commissions  given  by  the  old  congress. 

"  Since  the  adoption  of  the  constitution  of  the 
United  States,  there  has  been,  absolutely,  not  a 
syllable  of  legislation  on  the  form  of  army  com- 
missions. The  old  form  has  been  continued, 
substituting  '  the  president  of  the  United  States,' 
for  the  king,  (in  the  sentence  quoted,  and  origi- 
nally borrowed  from  British  commissions.)  This 
probably  was  the  pen-work  of  some  clerk,  or  at 
most,  the  hasty  direction  of  the  secretary  of  war, 
without  reflecting  that  the  chief  magistrate,  in  a 
republic,  is  not  the  fountain  of  all  honor  and 
power." 


CHAPTER  XL 


CHAPTER 
XI. 

Execution  of 
sentence. 


Corporal  pun- 
ishment, how 
inflicted.  Pun- 
ishment must 
not  be  prolong- 
ed. 


EXECUTION  OF  SENTENCE. 

THE  sentence  of  a  court-martial  having  been 
confirmed,  the  next  step  is  to  carry  it  intG  exe- 
cution. It  is  a  matter  of  importance,  that  the 
moral  effect  of  punishment  be  not  lost  to  the 
soldiery,  upon  whom  the  example  is  designed  to 
operate,  by  any  carelessness  or  levity  exhibited 
at  the  time  of  its  infliction  ;  and  for  that  reason, 
in  the  armies  of  all  nations,  the  execution  of  ju- 
dicial sentences  has  been  marked  by  solemnities 
and  ceremonies.  The  order  of  military  exhibi- 
tions is,  in  its  nature,  one  of  ceremonial,  and  the 
precision  and  formality  which  are  observed  on 
ordinary  occasions,  should  not  be  wanting  upon 
occasions  where  the  object  is  to  impress  the 
minds  of  the  spectators  with  seriousness  and 
awe. 

When  the  sentence  awarded  is  corporal  pun- 
ishment, the  troops  of  the  regiment  or  garrison 
are  drawn  up  to  receive  the  prisoner,  usually  in 
some  retired  -spot,  as  the  ditch  of  an  outwork,  to 
which  place  he  is  conducted  by  a  guard  or  es- 
cort. Upon  his  arrival  at  the  place  of  punish- 
ment, the  adjutant,  or  other  staff  officer,  reads 
the  sentence  of  the  court,  and  its  approval ;  the 
prisoner,  during  the  time  occupied  in  reading, 
standing  uncovered,  and  advanced  a  couple  of 
paces  in  front  of  the  escort.  He  is  then  ordered 


EXECUTION   OF    SENTENCE.  245 

to  strip  to  the  waist,  and  is  tied  to  a  machine  CHAPTER 
called  a  triangle,  which  is  formed  of  three  legs,  XI' 
connected  by  a  bolt  at  the  top,  and  separated 
about  four  feet  at  the  bottom.  A  bar  is  fastened 
at  a  proper  height  to  two  of  the  legs,  against- 
which  the  prisoner  may  lean  his  breast,  who  is 
tied  by  the  ancles  to  the  legs  of  the  machine, 
and  his  hands  secured  above.  Sometimes  the 
prisoner  is  lashed  to  a  gun- wheel.  The  strokes 
with  the  cat-o'-nine-tails  are  delivered  upon  the 
bare  shoulders,  by  the  drummer  or  trumpeter. 
The  drum  or  trumpet-major  counts  each  lash, 
giving  sufficient  time  for  the  executioner  to  pause 
between  the  strokes,  equal  in  duration  to  three 
paces  in  slow  time,  which  is  marked  by  taps  of 
the  drum,  or  by  the  executioner  encircling  the 
cat  round  his  head.  A  medical  officer  is  invari- 
ably required  to  attend,  to  superintend  the  pun- 
ishment. Should  any  appearances  indicate  the 
propriety  of  suspending  the  infliction,  the  medi- 
cal officer  reports  to  the  senior  officer  on  parade, 
who  gives  orders  accordingly.  It  is  well  under- 
stood, that  to  prolong  the  punishment  beyond 
the  usual  time  would  be  highly  improper,  and 
subject  the  officer,  who  authorized  or  caused 
such  to  be  done,  to  charges. 

All  means  used  to  cause  greater  pain  to  the  Means  to  causa 
sufferer,  than  what  must  necessarily  follow  the  ™rbiddenpain 
infliction  by  the  usual  instrument  of  punishment, 
is  strictly  forbidden  ;  and,  therefore,  the  prepara- 
tion of  the  cats  by  steeping  them  in  brine,  or 
washing  them  in  salt  and  water  during  the  pun- 
ishment, would  not  be  countenanced.     It  is  a 
well  known  principle,  that  punishment  is  shorn 
of  its  efficacy  by  a  resort  to  cruel  and  inhuman 


246 


EXECUTION    OF    SENTENCE. 


CHAPTER 
XI. 


Cat-o'-nine- 
tails. 


means ;  and  the  criminal,  in  such  cases,  is  no 
longer  viewed  by  the  by-standers  as  a  malefac- 
tor, but  is  sympathized  with  as  an  oppressed  and 
wronged  creature.  During  the  infliction  of  the 
.punishment,  it  is  necessary  that  the  drum-major 
should  see  that  the  strands  of  the  cat  are  not 
entangled,  so  as  to  produce  too  heavy  a  blow ; — 
they  should  be  kept  separated,  and,  if  necessary, 
washed  in  water. 

The  cat-o'-nine-tails,  the  usual  instrument  for 
flogging,  is  composed,  as  its  name  imports,  of 
nine  lashes  of  whip  cord,  each  knotted  in  three 
places,  one  knot  being  near  the  end  ;  the  lashes 
are  sixteen  to  eighteen  inches  long,  and  fastened 
to  a  handle  of  wood,  of  about  a  drumstick's 
length.  Common  whip  cord  is  the  thickness 
allowed ;  a  larger  description  would  too  much 
bruise  and  lacerate  the  flesh  by  its  weight. 
NO  more  pun-  It  is  a  rule  now  adopted  for  the  regulation  of 

ishment  than 

the  prisoner  can  corporal  punishment,  that  no   greater   amount 

bearat  one  time  *  *  .  •         t  t 

indicted.  shall  be  inflicted  than  what  the  prisoner  is  able 
to  undergo  at  one  time.  Should,  therefore,  any 
number  of  stripes  less  than  what  the  sentence 
prescribes,  be  more  than  could  be  given  at  any 
time,  in  reference  to  the  physical  ability  of  the 
prisoner  to  bear,  such  number  must  be  consid- 
ered as  remitted,  and  the  punishment  complete. 
This  rule  is  a  humane  one,  and  it  may  fairly  be 
argued,  that  whenever  the  punishment  adminis- 
tered is  equal  to  the  strength  of  the  culprit  to 
bear,  that  the  ends  of  punishment,  as  far,  at 
least,  as  he  is  concerned,  have  been  attained. 
It  is  not  very  likely  that  such  cases,  from  the 
limited  number  of  stripes  (fifty)  which  may  be 
inflicted,  will  often  happen.  The  writer,  how- 


EXECUTION    OF    SENTENCE.  247 

ever,  has  witnessed  an  instance  in  which,  from     CHAPTER 
the  great  excitability  of  the  prisoner,  no  more         XI> 
than  forty  stripes  could  be  given  with  safety. 

In  the  British  army,  where,  until  a  few  years  Modification  of 
ago,  corporal  punishment  was  inflicted  to  a  de-  j^g™11'^ 
gree  which  shocked  the  sensibilities  of  every  Britlsharmy- 
humane  person,  such  rule  was  of  the  highest 
importance.     Soldiers  in  that  service  were  fre- 
quently removed  from  the  place  of  punishment 
a  bruised,  bleeding,  senseless  mass  of  flesh.    One 
thousand, — five  hundred, — three  hundred  lashes, 
have  been  ordered  and  carried  into  execution 
with  a  merciless  severity.     Against  such  a  sys- 
tem of  punishment,  officers  of  that  army  took 
ground,   and  with   a   zeal   creditable   to   their 
humanity,  many  of  its  distinguished  members, 
urged  a  modification  of  the  rules  of  service,  and 
the  adoption  of  a  more  merciful  code. 

The  rule  itself,  adverted  to  above,  was  a  con- 
sequence of  the  excessive  punishment  author- 
ized and  inflicted  by  stripes  in  the  British  army, 
and  remedied  to  some  extent  the  rigorous  cus- 
tom which  then  prevailed. 

When  capital  punishment  is  to  be  inflicted,  capital  punish- 

T          ,,  •    i       i  ishment— shoot- 

great  ceremony  is  made  of  special  observance,  ing. 

When  a  criminal  is  to  be  put  to  death  by  shoot- 
ing, the  troops  to  witness  the  execution  are 
formed  on  three  sides  of  a  square.  The  pris- 
oner, escorted  by  a  detachment,  is  brought  on 
the  ground.  The  provost  marshal  leads  the 
procession,  followed  by  the  band  or  field 
music  of  the  regiment  to  which  the  convict 
belongs,  drums  muffled,  playing  the  dead 
march.  The  party  detailed  to  fire,  consisting 
usually  of  eight  to  twelve  men,  comes  next ; 


248 


EXECUTION   OP    SENTENCE. 


CHAPTER 
XI. 


Hanging. 


then  four  bearers  with  the  coffin,  and  im 
mediately  after  the  prisoner  attended  by  a 
chaplain  ;  the  escort  closes  the  rear.  The  pro- 
cession passes  in  front  and  along  the  three  sides 
of  the  square  facing  inwards.  On  arriving  at 
the  flank  of  each  regiment  the  band  of  that  regi- 
ment plays  the  dead  march,  and  continues  until 
its  front  is  cleared.  When  the  procession  has 
reached  the  open  space,  the  music  ceases ;  the 
prisoner  is  placed  on  the  fatal  spot  where  the 
coffin  has  been  put  down,  and  the  charge,  sen- 
tence, and  order  for  the  execution  read  aloud. 
The  chaplain  having  engaged  in  prayer  with  the 
condemned,  retires.  The  execution  party  forms 
at  about  six  paces  from  the  prisoner,  and  the 
word  is  given  by  the  provost  marshal.  When 
the  firing  party  forms,  the  escort  moves  by  the 
right  flank  and  takes  position  in  rear  of  that 
party,  at  ordered  arms.  Should  the  fire  not 
prove  instantaneously  fatal,  it  is  the  duty  of  the 
provost  marshal,  or  a  file  which  has  been  reserv- 
ed for  such  duty,  to  complete  the  sentence.  The 
execution  being  over,  the  troops  break  into  col- 
umn by  the  right  and  move  past  the  corpse  in 
slow  time. 

When  death  by  hanging  is  to  be  inflicted,  the 
troops  are  formed  in  square  on  the  gallows  as  a 
centre.  The  prisoner,  with  the  escort,  having 
arrived  at  their  respective  places,  the  charge, 
sentence,  and  warrant  are  read  aloud,  and  the 
executioner,  under  the  direction  of  the  provost 
marshal,  performs  his  office.  The  troops  march 
off  the  ground  at  common  time ;  the  provost 
marshal  with  the  escort,  remaining  until  the 
body  is  taken  down. 


EXECUTION   OF    SENTENCE.  249 

Soldiers  sometimes  for  disgraceful  conduct  are     CHAPTER 

discharged  the  service  with  ignominy.     A  sen-         ^1 

tence  of  this  kind  is  executed  as  follows.     The  SrSn«n\ng 
troops  being  assembled,  the  offender  is  brought  out  of  service 
forward   in  charge  of  a  guard,  when  the  of- 
fences of  which  he  has  been  found  guilty,  toge- 
ther with  the  sentence  and  its  approval  are  read. 
The  facings,  &c.,  of  his  dress  are  stripped  off; 
and  he  is  then  trumpeted  or  drummed  out  with 
the  "  rogue's  march,"  through  the  barracks  or 
quarters  of  the  corps. 

When  a  soldier  is  sentenced  to  close  confine-  confinement  01 
ment  in  the  cells,  if  sickness  should  require  him 
to  be  removed  to  the  hospital,  he  would  upon 
recovery  of  his  health  be  returned  to  imprison- 
ment for  the  remainder  of  his  sentence ;  but  the 
time  of  his  being  in  hospital  must  be  computed 
as  part  of  his  imprisonment.  When  in  hospi- 
tal he  is  deemed  a  prisoner. 

A  commanding  officer  would  not  be  justified  Commanding 

...  ,  11         •          officer  not  to 

in  releasing  prisoners  under  sentence,  allowing  release  prison- 

,  i      j     ,      .  -|  era  of  service 

them  to  do  duty  in  presence  of  the  enemy,  or  at  and  afterward^ 
other  times,  and  afterwards  inflicting  the  pun-  men? pl 
ishment. 

As  there  are  no  particular  places  provided  for  Place  of  con- 

...  .,          ,  , .  ,  ,,    finement  may 

the  imprisonment  of  soldiers  by  sentence  of  be  changed. 
courts-martial,  it  is  never  stated  where  the  con- 
finement shall  be  undergone,  but  is  left  to  the 
commanding  officer  of  the  garrison  wherever  the 
prisoner  may  be,  (unless  specially  ordered  to  be 
be  removed  to  another  station,)  to  carry  out  the 
sentence  by  the  means  within  his  control.  It 
consequently  does  not  interfere  with  the  right  to 
change  the  place  of  imprisonment,  should  the 
regiment  be  removed,  or  other  causes  render  it 

32 


250 


EXECUTION    OF    SENTENCE. 


CHAPTER 
XI. 


Punishment  to 
he  strictly  exe- 
cuted. 


Evils  of  false 
opinions  on  mil 
itary  punish- 
ments. 


necessary.  In  such  cases,  for  ordinary  close 
confinement,  the  time  occupied  in  effecting  the 
change  of  place  would  be  counted  in  the  sen- 
tence ;  but  where  solitary  confinement  with  low 
diet  is  the  sentence,  the  prescribed  number  of 
days,  according  to  the  judgment  of  the  court 
must  be  fulfilled. 

In  the  rigid  execution  of  sentences  awarded 
by  military  courts,  is  the  most  effectual  means 
of  preventing  offences.  It  is  much  to  be  re- 
gretted, as  a  cause  in  frequent  instances  of  the 
slight  effect,  either  as  punishment  or  example, 
which  the  decisions  of  courts-martial  produce, 
that  they  are  not  strictly  executed.  In  the  case 
of  commissioned  officers  the  weight  of  the  sen- 
tence is  felt  in  all  its  force ;  but  with  the  enlist- 
ed men,  who  are  of  course  subject  to  a  different 
species  of  punishment,  the  results  to  them  of  a 
trial  are  little  more  than  nominal. 

The  causes  which  lead  to  this  unfortunate  re- 
sult are  to  be  found  in  the  great  dispersion  of 
the  military  forces,  and  the  frequent  removals 
and  changes  incident  to  our  service.  There  are 
but  few  stations  which  can  be  considered  as  per- 
manent, and  the  greater  number  of  these  are  not 
provided  with  those  means  of  carrying  out  the 
sentences  of  courts-martial,  which  a  proper  re- 
gard for  subordination  and  good  discipline  so 
much  require.  It  may  also  be  surmised  that  the 
quantum  and  kind  of  punishment  authorized  to 
be  inflicted  for  certain  species  of  offences,  are 
not  altogether  such  as  are  most  wanted  to  en- 
sure military  obedience ;  and  public  opinion  at 
the  present  day,  based  upon  what  is  termed  a 
just  liberty  of  tlwught  and  action,  has  not  only 


EXECUTION    OF    SENTENCE.  25] 

very  much  modified  all  penal  legislation,  but  in-     CHAPTER 
dependent  of  that,  has  to  some  degree  worked  a        XI> 
corrupting  influence  upon  the  minds  of  the  sol- 
diery themselves.     This  evil  would  no  doubt,  in 
times  of  active  and  perilous  service,  be  much 
overcome  ;  but  nothing  less  than  the  necessities 
of  war  could  reconcile  the  change  to  the  public 
mind,  or  rather  to  the  mind  of  our  legislators. 

In  a  system  which  should  combine  precision  Benefits  to  be 

,  ,    .     .       ,.        ,1  j  ,>   ,  i  derived  from  a 

and  certainty  lor  the  jurisprudence  of  the  army,  precise  system 
would  the  country  find  and  secure  the  high 
interests  of  good  order  and  economy, — interests 
which,  while  they  would  not  stand  in  opposition 
to  any  personal  rights,  or  humane  government, 
would  be  doubly  appreciated  by  being  associated 
and  connected  with  all  the  lofty  and  enduring 
benefits  which  other  nations  have  gained,  or 
hope  to  acquire,  by  a  well  regulated  army. 


CHAPTER  XII. 


CHAPTER 
XII. 

Redress  of 
wrongs. 


OP  REDRESSING  WRONGS,  AND  APPEALS  FROM  A  REGI- 
MENTAL  COURT-MARTIAL  TO  A  GENERAL  COURT-MAR- 
TIAL. 

THE  34th  and  35th  articles  of  war  were  es- 
pecially framed  to  afford  a  speedy  and  efficacious 
remedy,  to  officers  and  soldiers,  who  are,  or  who 
think  themselves  oppressed  and  aggrieved  by 
their  superiors.  These  afford  the  opportunity 
to  the  authors  of  the  injury  complained  of,  to  re- 
pair it  by  their  own  act,  or  authorize  the  carry- 
ing of  the  complaint  to  higher  authority,  by  the 
sufferer,  or  make  positive  the  obligation  to  call 
a  regimental  court-martial,  without  qualification 
or  condition,  to  do  justice  to  the  complainant, 
upon  the  preferment  of  the  complaint  to  the 
commander  of  the  regiment. 

Preference  giv-  It  ntay  be  observed  in  the  character  and  Ian- 
officers  and  sol-  guage  of  the  two  articles  referred  to,  that  a  pre- 
ference is  given  to  the  inferior  officers  or  soldiers, 
in  hearing  and  determining  their  grievances,  by 
making  an  investigation  of  the  same  demandable 
in  the  first  instance  as  a  matter  of  right.  When 
the  reciprocal  relations  of  the  officer  and  soldier 
are  considered,  and  the  influence  which  the  posi- 
tion of  the  first  must  exercise  over  those  sub- 
jected to  his  command,  it  will  be  conceded  that 
the  preference  is  not  only  a  just,  but  a  necessary 
one.  The  soldier,  in  his  subordinate  station, 


OF    REDRESSING    WRONGS.  253 

enjoys  the  comfortable  assurance  of  protection,  CHAPTER 
and  the  officer,  if  any  be  inclined  to  oppression,  xn- 
is  restrained  in  his  actions  by  the  knowledge  of 
the  existence  of  such  a  right,  which  can,  at  any 
time,  be  exercised  for  the  remedy  of  wrongs. 
But  the  just  and  equitable  mode  of  discipline 
observed  in  our  army,  has  made  a  reference  to 
this  right  on  the  part  of  the  soldier,  a  very  rare 
occurrence  ;  and  the  disposition  of  the  officers, 
in  regard  to  their  men,  is  in  itself  a  pretty  sure 
guaranty  against  oppression. 

By  the  34th  article  of  war,  it  is  declared : —     Thirty-fourth 

~  .-,i..«,  ,„  T    article  of  war. 

"  If  any  officer  shall  think  himself  wronged 
by  his  colonel,  or  the  commanding  officer  of  the 
regiment,  and  shall,  upon  due  application  being 
made  to  him,  be  refused  redress,  he  may  com- 
plain to  the  general  commanding  in  the  state  or 
territory  where  such  regiment  shall  be  stationed, 
in  order  to  obtain  justice ;  who  is  hereby  re- 
quired to  examine  into  the  said  complaint,  and 
take  proper  measures  for  redressing  the  wrong 
complained  of,  and  transmit,  as  soon  as  possi- 
ble, to  the  department  of  war,  a  true  state 
of  such  complaint,  with  the  proceedings  had 
thereon." 

In  a  preceding  part  of  this  work,  (chap.  VI., 
pp.  77,  78,)  reference  is  made  to  this  particular 
article,  and  it  is  there  stated,  that  the  applica- 
tion of  it  is  proper  in  cases  of  wrong  inflicted  by 
superior  officers  of  whatever  grade.  It  is  also 
observed,  that  no  discretion  is  allowed  to  the 
general  to  whom  complaint  is  made,  to  arbitra- 
rily dispose  of  it  by  his  own  will.  This  latter 
part  must  be  understood  with  some  limitation. 
It  is  undoubtedly  required  of  him  "  to  examine 


254 


OP    REDRESSING    WRONGS. 


CHAPTER 
*"• 


towar  depart- 


into  the  complaint,  and  take  proper  measures 
for  redressing  the  wrong  complained  of,"  and  it 
is  fr°m  tnis  ver7  duty  enjoined  upon  him,  that 
a  discretion  is  vested  of  judging  of  the  truth  or 
not  of  the  complaint,  and  accordingly  either  for- 
ward or  not,  the  state  of  the  complaint  to 
the  department  of  war,  for  further  inquiry.  If 
the  charge  laid  should  be  incapable  of  proof,  or 
the  grievances  stated  not  amount  to  a  crime  or 
offence,  at  least  of  military  cognizance,  it  cannot 
be  supposed  that  it  was  intended  to  trouble  the 
department  with  a  report.  This  conclusion  is 
the  more  truthful,  inasmuch  as  the  complainant 
is  not  thereby  debarred,  of  either  the  right  or  the 
means  of  preferring  his  complaint  again  to  the 
highest  authority. 

In  cases  where  the  complaint  is  not  trans- 
mitted to  the  department  of  war  by  the  general, 
the  latter,  upon  a  due  consideration  of  all  the 
facts  and  circumstances  laid  before  him,  and 
concluding,  therefrom,  that  a  misconception  ex- 
ists in  the  mind  of  the  complainant,  frequently, 
or  usually  returns  the  accusatory  communica- 
tion to  the  author,  with  an  admonition  some- 
times, that  it  may  be  withdrawn  —  or  perempto- 
rily refuses  to  transmit  it,  with  his  report,  to  the 
war  department.  And  in  no  instance  could  this 
be  prejudicial  to  the  complainant,  because,  as 
has  been  observed,  he  can  reiterate  his  com- 
plaint, should  he  not  accede  to  the  recommenda- 
tion or  primary  decision  of  the  general.  Should 
the  general,  upon  a  second  application,  still  re- 
fuse  to  forward  the  complaint,  the  officer  making 
it  may  ^dress  himself  directly  to  the  war  de- 


OF    REDRESSING    WRONGS.  255 

partment,  through  the  office  of  the  adjutant  gen-     CHAPTER 

eral  of  the  army.1  XH> 

The  article  requires,  in  the  first  place,  that  complaint  to  b« 

.  ,     *,  first  laid  before 

the  complaint  should  be  lodged  with  the  colonel  the  commander 

of  the  regiment. 

or  officer  commanding  the  regiment,  and  appli- 
cation be  made  to  him  for  redress.  This  pro- 
cedure is  highly  becoming  and  discreet,  as  it 
gives  the  opportunity,  where  offences  have  been 
inadvertently  committed,  for  reparation  by  the 
officer  complained  of,  and  thus  saves  the  service 
from  being  harassed  by  vexatious  actions :  and 
it  is  only  upon  redress  being  refused  that  the 
complainant  is  authorized  to  prefer  his  charge 
to  the  general.  The  particulars  of  the  grievance  Grievance  for- 
should  be  formally  stated  to  the  colonel  in  wri- 
ting, and  he  should  also  be  formally  called  upon 
to  redress  the  alleged  grievance, — so  that  he 
may  fully  understand  the  ground  of  complaint, 
and  the  required  or  expected  redress,  and  thus 
be  able  to  regulate  himself  accordingly.  If,  after  when  repara- 

i  i.       . .  ,,  ..  ,,     .,  tion  is  refused 

such   application  for  reparation   of   the  wrong  canappiytotha 
suffered,   the    colonel,   or    commanding    officer,  ity. ei 
should  refuse   to   redress   the  same,  the  com- 
plainant may  make  his  statement  of  it  to  the 
general.     The  refusal  must  be  an  absolute  one, 
or  there  must  be  such  a  neglect  of  the  applica- 
tion, on  the  part  of  the  commanding  officer,  as 
shall  constructively  amount  to  a  denial  of  justice. 

It  must  be   understood,   however,   that   the  commander  of 

11  i*  , % •  ,1,1  the  regiment 

colonel  or  commanding  officer  must  be  the  me-  the  medium  of 
dium  of  communication  to  the  general,  and  that 
the  complaint  so  preferred  be  also  identical,  or 
the  same  in  substance,  with  that  submitted  in 
the  first  instance.      The  first  requirement   is 

1  Samuel's  Law  Military,  pp.  502,  503. 


250 


OF    REDRESSING    WRONGS. 


CHAPTER 
XII. 


Thirty-fifth  ar 
tide  of  war. 


Origin  of  the 
thirty-fifth  ar- 
ticle. 


necessary  for  a  proper  observance  of  the  general 
.  regulations  for  the  army,  a  violation  of  which 
would  subject  the  offender  to  punishment :  and 
the  second  is  due  to  the  commanding  officer  him- 
self,  who  may  thus  have  further  space  for  re- 
pentance of  his  first  decision,  and  opportunity 
of  accompanying  the  complaint  with  explana- 
tions of  his  own  conduct. 

The  mode  here  pointed  out  is  in  strict  accord- 
ance with  the  article  and  the  general  regulations 
of  the  service,  (G.  R.  par.  790,)  and  it  is  only 
by  a  consistent  observance  of  them  that  the 
benefits,  sought  under  the  particular  article  of 
war,  the  subject  of  these  remarks,  can  be  ob- 
tained without  delay,  and  inconvenient  embar- 
rassment. 

The  succeeding  article  of  war,  to  wit,  the 
35th,  requires  particular  attention ;  the  more  so 
from  the  infrequency  of  any  action  under  it,  and 
the  unsettled,  or  mistaken,  or  indeed  careless 
opinions,  which  have  hitherto  been  entertained 
respecting  its  true  purposes  or  meaning.  The 
article  in  question  was  originally  adopted  from 
the  British  articles  of  war,  by  a  resolution  of  the 
American  congress,  September  20,  1776,  and 
thus  incorporated  with  our  military  code.  By 
a  subsequent  act  of  the  national  legislature, 
(April  10,  1806,)  it  was  varied  in  its  terms,  by 
the  omission  of  the  words, — "  commanding  the 
troop  or  company  to  which  he  belongs,"  but 
without  varying  the  import  or  intention  of  the 
article  in  the  slightest  degree,  as  will  be  pres- 
ently shown  when  we  proceed  to  its  interpre- 
tation. 

A  law  of  this  description,  which  is  intended 


OF    REDRESSING   WRONGS.  257 

for  the  individual  soldier,  as  a  protection  against     CHAPTER 

wrong,  and  investing  him  with  a  right  which        *"' 

makes  inquiry  certain  and  speedy,  ought  to  be  Characterof- 
Well  understood,  in  order  that  the  subject  matter 
of  complaint  be  properly  limited,  and  the  prac- 
tice or  procedure  under  it  be  simple  and  uniform. 
Unless  the  species  of  wrong  be  clearly  denned, 
it  would  be  in  the  power  of  any  dissatisfied 
soldier  to  harass  his  officer  with  baseless  or  ma- 
licious allegations,  and  the  service  with  trouble- 
some and  expensive  investigations ;  and  this  the 
more  readily,  as  the  article  does  not  provide  a 
remedy  against  accusations  without  foundation, 
made  under  its  provisions ;  and,  from  the  nature 
of  the  subject,  would  not  admit  of  restrictions 
for  fear  of  causing  injustice,  by  intimidation  to 
honest  complainants. 

The  preference  given  by  it  to  the  enlisted  TO  promote 

good  order  and 

soldier,  was  not  only  in  reference  to  his  indi-  discipline. 
vi  dual  rights,  as  connected  with  the  duties  of 
the  commanding  officer  of  his  troop  or  company, 
but  has  likewise  an  intimate  relation  with  the 
essential  purposes  of  discipline ; — for  it  is  in  the 
equal  distribution  of  justice,  and  the  confidence 
of  protection,  that  the  sure  foundation  is  laid  of 
good  order,  and  subordination. 

The  interpretation  of  the  similar  article  for 
the  regulation  of  the  British  service  is  fixed,  and 
has  insured  a  uniform  practice  in  regard  to  com- 
plaints made  by  enlisted  soldiers,  for  a  long  pe- 
riod of  time. 

The  regimental  court-martial  here  referred  to,  solely  intended 
is  solely  for  the  purpose  of  doing  justice  to  the 
complainant,  and  punishment  forms  no  part  of 
its  office,  inasmuch  as  a  court  of  this  description 

33 


258  OF    REDRESSING    WRONGS. 

CHAPTER  is  not  of  adequate  powers  or  jurisdiction  to  sit 
xn'  in  judgment  upon,  or  try  a  commissioned  officer, 
being  limited,  in  this  respect,  by  the  67th  article 
of  war.  In  connection  with  this  part  of  the 
subject,  it  is  proper  to  mention  in  this  place,  that 
the  court,  though  called  to  investigate  the  facts 
alleged  as  a  wrong  by  the  complainant,  is  never- 

Not  a  court  of  theless  not  a  court  of  inquiry,  with  powers  such 
as  are  contemplated  in  the  91st  article  of  war, 
and  this,  because  courts  of  inquiry  can  only  be 
ordered  by  the  president  of  the  United  States, 
or  by  the  commanding  officer,  duly  authorized 
to  appoint  courts  of  inquiry,  when  demanded  by 
the  accused.1  The  regimental  court-martial 
now  under  consideration,  is  a  body  organized 
for  special  purposes,  and  therefore  much  re- 
stricted in  the  range  or  scope  of  its  powers,  and 
confined  in  its  investigations  to  a  particular  spe- 
cies of  wrongs. 

Description  of       These  wrongs  must  arise  out  of  the  relative 

wrongs  to  be  .  7.  „ 

redressed.  connection  of  the  commanding  officer  of  a  troop 
or  company,  and  a  soldier  belonging  to  it.  They 
relate  principally,  if  not  entirely,  to  matters  of 
allowances  ;  and  have  reference  to  clothing,  pay, 
messing,  repairs,  and  all  things  belonging  to 
what  is  understood  as  the  interior  economy  of  a 
company  ;2  that  is,  they  have  reference  to  mat- 
ters of  account  between  the  captain,  or  com- 
mander of  the  company,  and  the  soldier.3  This 
is  the  description  of  the  wrongs  contemplated 
by  the  article,  and  therefore  accusations  by  a 
complainant,  impugning  the  character  of  an 
officer,  would  be  foreign  to  the  view  of  the  ar- 

i  92nd  Article  of  War.  2  Simmons,  p.  73. 

8  Macomb's  Practice  of  Courts-Martial,  p.  90. 


OF    REDRESSING    WRONGS. 


ticle  ;  or  injuries  growing  out  of  the  acts  of  other     CHAPTER 
persons,  not  so  related   (that   is,  commanding        XII> 
officer  of  a  company  and  soldier  belonging  to  it,) 
could  not  be  considered  by  this  regimental  court- 
martial,  but  would  necessarily  be  prosecuted  by 
the  usual  means,  afforded  for  the  administration 
of  justice  to  the  army.1 

In  the  case  of  Arthur  C.  Delap,  a  private  of  Caseo 
company  A,  8th  regiment  of  infantry,  upon 
complaint  preferred  by  him  against  Surgeon 
Lyman  Foote,  the  court  of  inquiry  assembled  to 
investigate  it,  entered  at  some  length  into  an  ex- 
amination of  the  35th  article  of  war,  (see  gene- 
ral orders,  No.  13,  dated  "  war  department,  adju- 
tant general's  office,  Washington,  February  20, 
1843,")  and  stated  in  the  opinion  expressed,  an 
interpretation  of  the  same. 

The  views  expressed  by  the  court  of  inquiry, 
embody  substantially  those  here  given,  and  par- 
ticularly as  to  the  matter  of  complaint,  it  is 
said : — "  The  American  law  on  this  whole  subject 
is  believed  to  be  the  same  as  the  British  law, 
with  the  single  exception  that  the  complaint, 
under  the  British  law,  can  only  be  made  against 
the  complainant's  captain,  or  other  officer  com- 
manding his  troop  or  company."  Now  all  the 
writers  on  English  military  law,  who  speak  at 
all  of  this  subject,  agree  in  confining  the  com- 
plaint to  matters  arising  out  of  the  commanding 
officer's  administration  of  the  interior  economy 
of  the  company,  and  it  is  in  reference  to  this  re- 
striction that  the  court  of  inquiry  remark,  "  that 
to  '  do  justice  to  a  complainant/  and  to  sustain 
the  majesty  of  a  violated  law,  are  two  very 

1  Samuel's  Law  Military,  p.  504. 


260  OP    REDRESSING    WRONGS. 

CHAPTER  different  things.  In  the  one  case,  a  wrong  may 
XIL  be  remedied  to  the  entire  satisfaction  of  the 
complainant, — as  in  matters  of  account  an  error 
may  be  corrected.  But  in  the  other  case,  such 
as  the  infliction  of  a  personal  injury  upon  the 
complainant,  justice  cannot  be  done  to  him,  and 
if  the  aggressor  be  a  commissioned  officer,  resort 
should  be  had  to  a  tribunal  competent  to  inflict 
a  penalty  upon  him  for  a  violation  of  law.  In 
such  cases,  the  complainant  must  be  regarded 
not  as  seeking  'justice  to  him'  in  the  mean- 
ing of  the  35th  article  of  war,  but  as  seeking 
iustice  upon  his  aggressor.  It  is,  therefore,  the 

Opinion  of  the     J    .    .  ,     ,  .  '. 

court  of  inquiry,  opinion  of  this  court,  that  the  regimental  court- 
martial,  provided  for  in  the  35th  article  of  war, 
was  designed  to  act  upon  such  cases  as  admit  of 
£  doing  justice  to  the  complainant,'  in  the  lan- 
guage of  the  law,  and  never  was  designed  to 
bring  under  examination,  complaints  amounting 
to  an  '  accusation  or  imputation'  of  an  officer, 
(see  91st  article  of  war,)  an  inquiry  into  which, 
so  liable  to  abuse,  can  only  be  had  under  the 
provisions  of  the  92nd  article  of  war,  or  by  a 
general  court-martial  ordered  by  competent  au- 
thority." 

Exception  to  the      In  the  interpretation  of  the  35th  article  of 

opinion  of  court  .11 

of  inauiiy.  war,  by  the  court  of  inquiry  referred  to,  the  au- 
thor has  great  pleasure  to  acknowledge  a  general 
propriety  of  thought,  and  therefore  fully  acqui- 
esces therein,  with  the  single  exception  of  con- 
sidering every  officer  of  the  company  as  obnox- 
ious to  complaints  on  the  part  of  any  soldier  be- 
longing to  it.  They  say,  "  It  is  the  opinion  of 
the  court,  that  the  officers  referred  to  in  this  ar- 
ticle are  company  officers — of  the  company  to 


OP    REDRESSING    WRONGS.  261 

which  the  complainant  belongs — and  to  no  other     CHAPTER 

officers."  — 

The  basis  upon  which  this  last  conclusion  is 
founded,  seems  to  be  altogether  in  the  fact  that 
the  law  of  congress  of  1806,  omitted  the  words, 
"  commanding  the  troop  or  company  to  which 
he  belongs,"  and  such  fact  is  clearly  set  forth  in 
the  argument  of  the  court.  By  the  adoption  of 
the  same  views  as  those  prevailing  in  the  British 
army,  and  by  which  the  subject  matter  of  com- 
plaint is  limited  to  wrongs  connected  with  allow- 
ances of  pay,  clothing,  messing,  &c.,  &c.,  it  ap- 
pears that  the  court  of  inquiry  did  not  perceive 
that  by  making  the  article  applicable  to  any  offi- 
cer of  the  company  to  which  the  complainant 
belongs,  there  was  a  manifest  inconsistency  in 
the  diverging  parts  of  their  opinion.  If  indeed, 
the  variance  in  the  article  of  1806,  was  intended 
to  make  officers,  other  than  the  commander  of 
the  company,  subject  to  complaints  by  soldiers, 
and  to  cause  them  to  be  investigated  by  the  re- 
gimental court-martial  authorized  under  its  pro- 
visions, why  did  not  the  court  of  inquiry  em- 
brace every  officer  of  the  regiment,  instead  of 
confining  it  to  those  of  the  company  to  which 
the  complainant  belongs  only  ?  The  same  au- 
thority which  appoints  the  court  for  the  exa- 
mination of  complaints  against  the  latter,  would 
be  equally  competent  to  appoint  courts  for  the 
same  purpose  in  regard  to  the  former ;  and  no 
more  delay,  expense,  or  inconvenience  to  the 
service,  would  be  experienced  in  the  one  case 
than  in  the  latter.  If  the  35th  article  of  war  had 
no  existence,  there  would  be  ample  means  for 
the  redressing  of  wrongs,  in  which  punishment 


262  F   REDRESSING   WRONGS. 

*  t  • 

CHAPTER  of  the  oppressor  was  the  aim  of  the  complaint 
xn-  But  that  article  had  an  entirely  different  pur- 
pose— a  purpose  which  was  solely  for  the  settle- 
ment of  errors,  or  wrongs,  growing  out  of  the 
administrative  part  of  the  company  command — 
something  in  the  nature  of  a  board  of  arbitra- 
tion, by  which  facts  were  to  be  ascertained,  and 
thereby  justice  done.  Now,  as  an  officer  of  the 
company,  not  the  commander  thereof,  cannot 
stand  in  such  relation  with  the  soldiers  com- 
posing it,  it  is  certain  that  he  can  never  be  held 
accountable  in  the  mode  contemplated  by  the 
35th  article  of  war,  and  therefore,  it  appears, 
that  the  opinion  of  the  court  of  inquiry,  respect- 
ing the  particular  matter  to  be  complained  of, 
and  the  persons  against  whom  such  complaints 
will  lie,  is  clearly  contradictory.  "  The  wrong 
is  either  subsisting  or  foregone,  and  of  such  a  na- 
ture as  is  capable  of  redress,"  for  the  article 
"  aims  not  further  than  the  doing  justice  to  the 
complainant."1  It  consequently  would  seem  a 
necessity,  independent  of  the  difference  of 
phraseology  in  our  law,  that  the  like  interpreta- 
tion throughout  should  prevail,  as  that  now  ac- 
cepted in  the  British  army.  For  if  the  latitude 
allowed  by  the  opinion  of  the  court  of  inquiry 
is  admitted,  we  must  consider  the  enactment  re- 
ferred to,  as  supererogatory,  or  bring  it  in  conflict 
with  the  provisions  of  the  67th  and  92nd  ar- 
ticles of  war.  It  is  from  such  considerations 
that  the  author  is  compelled  to  differ  from  the 

The  command-          .    .  1-1,1  -i   ,  i     i 

»r  of  the  troop  opinion  expressed  by  the  court,  and  to  conclude 

or  company  on-     .-,  1*1  «    •  .1  tv 

]y  subject  u     that,  none  out  the  captain,  or  other  officer  com- 
manding  the  troop  or  company  to  which  the  com- 

1  Samuel's  Law  Military,  p.  505. 


OF    REDRESSING   WRONGS  263 


plainant  belongs,  can  be  held  subject  to  com-     CHAPTER 
plaints,  in  the  manner  or  form  specified. 


XII. 


The  words  of  the  article,  "  inferior  officer  or  Parties  to  th« 

inquiry. 

soldier,"  include  all  persons  belonging  to  the 

I  troop  or  company  under  the  rank  of  commis- 

sioned officer,  and  them  only :  and  the  words, 
(after  the  word  "captain")  "or  other  officer," 
signify — or  other  officer  commanding  the  troop 
or  company.  Thus  the  parties  to  an  inquiry 
under  the  article  are  distinctly  named  and  limi- 
ted. The  wrong  to  be  redressed,  as  has  been 
before  stated,  must  be  of  such  a  nature  as  grows 
out  of  the  relative  connection  of  the  officer  com- 
manding the  company,  with  the  soldier  belong- 
ing to  it ;  and  have  reference  to  some  right  of 
the  latter  which  is  improperly  restrained,  or  some 
abuse  committed  by  the  captain,  "  or  other  offi- 
cer," or  by  him  permitted  to  another :  and  mili- 
tary offences  of  which  the  laws  and  the  custom 
of  service  take  cognizance,  would  not  be  a  legit- 
imate subject  for  inquiry  by  such  court,  for  the 
"  doing  justice  to  the  complainant."  Such  mat- 
ters must  be  referred  to  a  superior  officer,  so  that 
a  proper  court  may  be  convened  for  the  trial  and 
punishment  of  the  accused. 

Soldiers  cannot  require  a  regimental  court-  complaint 
martial  to  be  assembled,  (nor  would  it  be  lawful 
if  assembled,)  to  do  them  justice  for  wrongs  al- 
leged  by  them  as  suffered  from  officers  not  the  p 
captain,  or  officer  commanding  the  troop  or  com- 
pany to  which  they  belong.     These  cases  must 
find  a  remedy  in  the  ordinary  proceedings  of  a 
general  court-martial  for  the  trial  of  the  wrong- 
doer, should  the  circumstances  be  thought  by 


264  OP    REDRESSING    WRONGS. 

CHAPTER     the  commanding  general,   to  call   for  such  a 

XII. 


course. 


Application  to        The  individual  who  is  aggrieved  must  always, 

be  first  made  D  J 

the  captain.  in  the  first  place,  address  himself  to  his  captain, 
or  other  officer  commanding  the  company  to 
t  which  he  belongs,  and  then,  if  redress  is  denied, 
he  may  carry  his  complaint  to  the  commander 
of  the  regiment.  This  course  is  consonant  with 
the  rule  of  communications  made  to  superiors, 
and  is  therefore  required.  Samuel,  however,  in 
his  work  on  the  "  Law  Military,"  lays  it  down 
as  a  rule,  that  the  soldier  is  to  make  his  com- 
plaint "  without  any  circuitousness,  to  the  com- 
manding officer  of  the  regiment  :'n  but  Captain 
Simmons,  in  his  treatise  on  courts-martial,2  en- 
tertains a  different  opinion ;  and  such  too  is  the 
custom  of  our  service,  for  it  is  evident  that  very 
frequently  upon  having  complaints  made  known 
to  him,  the  captain  or  other  commander  of  the 
company  may  at  once  do  justice  to  the  com- 
plainant, and  thus  obviate  the  necessity  of  any 

NO  discretion  in  further  proceedings.  The  complaint  having 
°  been  laid  by  the  soldier  before  the  commanding 
officer  of  the  regiment,  the  latter  has  no  discre- 
tion to  exercise,  but  must  forthwith  "  summon  a 
regimental  court-martial  for  the  doing  justice  to 
the  complainant." 

Either  party  If  the  alleged  WTOIlff  be   Substantiated  by  pro- 

may  appeal  &  •    1 

per  evidence  before  this  regimental  court-martial, 
such  decision  will  be  made  as  shall  cause  the 
grievance  to  be  abated  or  remedied.  With  such 
decis;on,  if  either  party  be  dissatisfied,  an  ap- 
peal may  be  made  to  a  general  court-martial. 
The  object  of  an  inquiry  under  the  article  is  to 

1  Samuel,  p.  505.  2  Simmons,  72. 


OF    REDRESSING    WRONGS.  265 

"  do  justice  to  the  complainant,"  and  not  for  the     CHAPTES 
purpose  of  punishment ;  the  court  would,  there-        XI1' 
fore,  not  be  justified  in  law  to  express  an  opin-  Se^itS 
ion  affecting  the  character  of  the  officer,  but 
must  confine  itself  to  the  merits  of  the  case,  and 
simply  state  whether  the   complaint  be   well 
founded  or  not,  and  to  what  extent.     If  such  obedience  to 

.  the  opinion  to 

decision  be  adverse  to  the  omcer,  it  becomes  at  be  enforced. 
once  the  duty  of  the  commander  of  the  regiment 
to  see  that  the  officer  complained  of  does  justice 
to  the  complainant.  If,  however,  the  latter  re- 
fuse so  to  do,  and  not  appeal  from  the  decision 
to  a  general  court  martial,  it  follows  as  a  matter 
of  course,  that  the  superior  authority  of  a  high- 
er court  should  be  invoked,  to  enforce  obedience 
to  the  decision  of  the  inferior  tribunal,  as  well  as 
to  punish  the  officer  who  in  such  manner  had 
contemned  its  requirements ;  otherwise  the  pro- 
ceedings in  the  first  instance  would  be  entirely 
nugatory. 

The  second  part  of  the  article  declares,  that, 
"  from  which  regimental  court-martial,  either 
party  may,  if  he  thinks  himself  still  aggrieved, 
appeal  to  a  general  court-martial.  But  if  upon 
a  second  hearing,  the  appeal  shall  appear  vexa- 
tious and  groundless,  the  person  so  appealing 
shall  be  punished  at  the  discretion  of  the  said 
court-martial." 

Here  it  is  perceived  that  either  party  has  an  Vexatious  and 
absolute  right  of  appeal,  by  which  justice  may  p^aiLnd  e 
be  ensured.     But  to  guard  against  troublesome 
and  vexatious  suits  urged  by  a  captious  or  ma- 
licious temper,  the  general  court-martial  is  wise-  Court  may  Pu» 
ly  invested  with  discretion  to  punish  the  appel-  Lit.1  °  appe " 

34 


266 


OP    REDRESSING    WRONGS 


CHAPTER 
XII. 

To  obtain  a 
summary  rem- 
edy. 


lant,  whenever  the  appeal  shall  appear  to  be 
vexatious  and  groundless. 

The  object  of  the  article  is  to  afford  a  sum- 
mary remedy  to  inferior  officers  and  soldiers,  and 
the  benefit  of  it  would  be  somewhat  doubtful  if 
they  could  not  be  sought  but  at  the  hazard  of 
punishment.  The  general  court-martial  would 
therefore,  considering  the  provisions  of  the  ar- 
ticle as  founded  upon  the  principle  of  succoring 
the  weak  against  the  oppression  of  the  strong, 
be  slow  in  denouncing  a  penalty,  when  the  ap- 
pellant might  fail  in  supporting  his  accusation ; 
and  this,  because  such  failure  might  be  the  con- 
sequence of  ignorance,  or  inadvertency,  in  the 
method  of  prosecuting  the  same  ;  and  it  certain- 
ly would  amount  in  a  considerable  degree  to  a 
denial  of  justice,  to  encourage  in  the  first  in- 
stance a  free  complaint,  and  then  "  denounce  a 
heavy  punishment  as  a  kind  of  counterbalance 
to  such  encouragement,  in  the  event  of  a  miscon 
ceived  injury  or  ill  conducted  prosecution." 
The  general  It  does  not  follow  that  a  failure  to  substan- 

court-martial  to      . 

act  with  discre-  tiate  tlie  charge,  necessarily  subjects  the  appel- 

tion  and  tender-  .   J>  / 

ness.  lant  to  punishment.     Such  a  result  would  be 

grossly  unjust.  The  power  lodged  with  the 
general  court-martial  to  punish  must  still  "  be 
tenderly  and  discreetly  used,  and  only  where 
there  is  no  probable  cause  for  the  appeal,"1  and 
where  it  is  evident  that  it  is  wholly  "  VEXATIOUS 
and  GROUNDLESS  ;"  and  the  court  should  under 
any  circumstances  be  cautious  in  coming  to 
such  conclusion ;  for  the  very  end  of  the  law, 
and  the  principle  of  retributive  justice  might 
otherwise  be  destroyed. 

i  Samuel,  p.  509. 


.*" 

OF    REDRESSING    WRONGS.  267 

As  the  remedy  provided  against  wrong  is  a     CHAPTER 
very  summary  one,  it  follows  that  none  but  di-        XII> 
rect  sufferers  can  complain  or  be  entitled  to  it.  ^c^yffc^ 
Informants  are  positively  excluded,  no  matter  plain' 
from  what  motive  they  may  act.     The  com- 
plainant must'  be  the   suffering   party  and  he 
alone. 

It  is  also  a  principle  that  no  combination  or  Combination  of 

r.    .    .  ,,  ,    .        •  ,  complaints  for- 

joining  of  complaints  together,  so  as  to  present  a  bidden 

formidable  whole,  can  be  allowed.  Such  pro- 
ceeding on  the  part  of  soldiers  would  be  a  dan- 
gerous innovation  upon  the  principles  of  the 
military  state,  and  inconsistent  with  proper  no- 
tions of  good  discipline.  The  very  joining  in 
such  complaints  would  argue  a  mutinous  pre- 
understanding^  which  the  article  is  intended  to 
prevent,  by  affording  a  sure  means  of  redress  for 
every  wrong  or  injury  as  it  occurs. 

For  the  redress  of  wrongs  as  described  in  the  The  only  cases 

,.  ,111  ,  •  i  in  which  an  ap- 

preceding  pages,  the  law  has  sanctioned  an  ap-  peai  is  allowed, 
peal  from  the  decision  of  the  first  body  called  to 
investigate  the  grievance  complained  of.  This 
is  the  only  case,  and  it  is  only  under  such  cir- 
cumstances, in  which  an  appeal  can  be  made. 
It  evinces  a  particular  consideration  and  jealousy 
for  the  rights  and  satisfaction  of  inferior  officers 
and  soldiers,  and  has  made  an  exception  to  the 
ordinary  course  of  military  trials  which  distin- 
guishes it  in  a  very  marked  manner.  It  not  only 
authorizes  to  some  extent  a  review  of  the  pro- 
ceedings in  the  first  instance,  but  secures  all  the 
advantages  of  a  new'trial  (as  in  fact  it  really  is), 
independent  of  any  previous  examination,  and 
therefore  puts  the  party  in  a  situation,  to  cure 
all  the  inconveniences,  inadvertencies,  errors,. 


268 


OF    REDRESSING    WRONGS. 


CHAPTER 
XII. 


Mode  of  pro- 
ceeding. Par- 
«i*a  not  sworn. 


and  deficiencies  of  testimony  which  may  have 
marked  the  first  progress  of  the  complaint,  and 
rendered,  very  probably,  an  appeal  necessary. 

The  mode  of  proceeding  in  these  cases  is  as 
follows  : — The  regimental  court  being  assembled 
and  the  parties  present,  the  order  for  assembling 
is  read,  when  the  complainant  and  the  defend- 
ant are  asked  if  they  have  any  objection  to  any 
member,  which  together  with  the  answer  of  each 
are  minuted  on  the  record.  The  court  is  duly 
sworn.  The  complainant  then  states  the  griev- 
ance complained  of,  and  proceeds  to  prove  the 
alleged  wrong.  The  officer  next  adduces  what- 
ever he  may  have  in  refutation  or  explanation 
of  the  allegation ;  and  both  parties  and  their 
witnesses  having  been  heard,  the  court  is  closed 
for  deliberation,  and  an  opinion  is  given  on  the 
subject  before  it.  All  the  witnesses  must  be  ex- 
amined under  oath,  but  neither  of  the  parties 
can  be  sworn. 

If  either  the  complainant  or  defendant  is  dis- 
satisfied with  the  decision,  and  thinks  himself 
still  aggrieved,  he  may  appeal  to  a  general  court- 
martial,  by  which  the  whole  subject  is  again 
heard. 
On  an  appeal  The  appeal  here  alluded  to,  is  a  new  trial  of 

the  case  is  re- 
heard as  a  new  the  very  same  circumstances,  which  were  in- 
quired into  by  the  regimental  court.  But  nei- 
ther the  proceedings  nor  anything  that  took 
place  on  the  regimental  court  can  be  received  as 
evidence  by  the  general  court-martial.  Any 
witnesses  whether  examined  before  or  not  may 
be  called  by  either  party  and  examined — for 
being  a  new  trial,  the  proceedings  of  the  second 
are  entirely  irrespective  of  anything  which  tran- 


OF    REDRESSING   WRONGS.  26S 

spired  at  the  first ;  and  neither  before  the  regi-     CHAPTER 
mental  or  the  general  court-martial,  does  any        *"• 
person  appear  as  a  prisoner.     The  following  is 
the  form  of  procedure  in  cases  of  appeal : — 

The  court  having  assembled,  and  the  appel-  Proceedings  on 
lant  and  respondent  being  present,  the  order  for 
the  court  is  read.  Both  parties  have  the  right 
of  challenging,  and  the  judge  advocate  puts  the 
usual  question  on  this  point,  first  to  the  appel- 
lant, and  afterwards  to  the  respondent,  minuting 
such,  and  the  respective  answers  on  the  proceed- 
ings. The  members  and  the  judge  advocate  are 
duly  sworn.  The  statement  of  alleged  wrongs 
by  the  appellant  is  read  and  recorded,  and  that 
party  first  addresses  the  court  and  lays  what  he 
considers  his  wrongs  before  it,  and  exhibits 
whatever  proof  he  may  possess  in  support  of  his 
declarations.  The  appellant  must  not  in  any 
case  be  sworn.  The  witnesses  who  are  called 
by  either  party  give  evidence  on  oath.  When  •«-•% 

the  appellant's  case  is  fully  before  the  court,  the 
respondent  is  allowed  to  reply  to  it,  by  offering 
such  evidence  as  he  thinks  necessary ;  but  the 
respondent  himself  should  not  be  sworn  unless 
required  to  be  so  by  the  appellant,  or  when  the 
court  deem  it  necessary,  that  he  may  depose  to 
facts.  The  subject  having  been  thus  developed, 
the  court  deliberates  on  the  evidence  and  gives 
its  opinion  thereon. 

This  opinion  consists  in  the  simple  declara-  opinion  of  th« 
tion,  that  the  appellant  either  has  substantiated, 
or  failed  to  substantiate  the  grievances   com- 
plained of. 

And  should  the  court  be  further  of  opinion 
that  the  appeal  is  vexatious  and  groundless,  such 


270  OF    REDRESSING    WRONGS. 

CHAPTER     fact  would  be  stated,  and  the  court  would  then 
.  *"•         proceed  to  pass  such  judgment  upon  the  appel- 
lant, as   the  circumstances  of  the  trial  would 

' 

warrant. 

The  meaning  of  the  law,  or  35th  article,  is 
undoubtedly  such  as  is  set  forth  above,  and  is 
confirmed  by  the  similar  interpretation  and  prac- 
tice under  it  of  the  British  service,  from  whence 
it  was  derived.  The  particular  subjects  for  in- 
vestigation are  limited,  according  to  the  rule  laid 
down,  and  made  certain  by  the  comparison  with 
it  of  other  articles  of  war  which  provide  for  the 
trial  and  punishment  of  all  persons  accused  and 
convicted  of  military  crimes.  It  is  somewhat 
singular,  considering  the  clear  intention  of  the 
article,  that  such  a  misapprehension  of  it  should 
have  existed  for  a  long  period,  and  that  so  clever 
an  author  as  Major  Adye  should  have  aided  by 
his  remarks,  under  the  head  of  "  Courts  of  In- 
Remarksonthe  quirv"  (page  77),  to  continue  the  error.  It  is 

35th  article  of     ^        J      ^  '  .  . 

war.  there  observed — "  And  courts  of  inquiry  might, 

I  should  think,  be  also  made  use  of  for  searching 
into  the  foundation  of  complaints  of  inferior  offi- 
cers or  soldiers,  who  may  think  themselves  wrong- 
ed by  their  captains  or  other  officers,  for  which 
commanding  officers  of  regiments  are  required 
by  the  articles  of  war,  to  summon  regimental 
courts-martial,  in  order  to  do  justice  to  the  com- 
plainant. For  as  no  commissioned  officer  can 
be  cashiered  or  dismissed  from  the  service,  ex- 
cept by  order  from  the  king,  or  by  sentence  of  a 
general  court-martial,  if  the  complaint  is  found 
to  be  just,  and  of  so  heinous  a  nature,  that  the 
offender  appears  to  deserve  cashiering,  this  regi- 
mental court-martial  has  not  power  to  inflict  the 


OF    REDRESSING    WRONGS.  271 

punishment  adequate  to  the  crime ;  where  then     CHAPTER 
is  the  use  of  summoning  a  court  which  cannot        XII> 
do  justice  to  the  complainant  ?  Were  the  circum- 
stances of  the  complaint  to  be  previously  ex- 
amined by  a  court  of  inquiry,  a  judgment  might 
be  formed  from  their  opinion,  whether  there  was 
a  sufficiency  of  matter  to  bring  the  offender  to 
trial,  and  a  too  frequent  and  unnecessary  assem- 
bling of  courts-martial  be  thereby  prevented." 

It  is  evident  from  the  above  quotation,  that 
Major  Adye  was  mistaken  in  his  view  of  this 
particular  article  of  war,  and  that  he  confounded 
its  provisions  and  purposes  with  the  ordinary 
powers  of  other  courts-martial  to  try  and  pun- 
ish. 


CHAPTER  XIII. 


COURTS  OF  INQUIRY. 

CHAPTER         COURTS  of  inquiry  in  the  armies  of  Europe,  it 
XIU-        would  seem  derived  their  origin  from  the  pre- 


courts  rogative  of  the  sovereign,  and  became  part  of  the 

of  inquiry. 

military  judicature  by  custom  and  not  by  express 
law.  From  this  fact  it  has  been  considered,  that 
the  exercise  of  this  authority,  instead  of  being 
regarded  as  an  assumption  of  power,  is  a  favor 
to  the  accused,  and  it  is  thus  stated  by  Captain 
Simmons  in  his  work  on  courts-martial  at  page 
84:— 

"  As  it  is  the  prerogative  of  the  crown  to  dis- 
miss officers  from  the  service  without  affording 
them  any  public  opportunity  of  justifying  their 
conduct,  it  must  undoubtedly  in  some  sense,  be 
considered  a  work  of  royal  favor,  that  an  officer 
should  have  extended  to  him  such  opportunity, 
as  a  court  of  inquiry  may  yield,  of  exculpating 
himself  from  the  charges  brought  against  him, 
and  of  regaining  the  royal  confidence." 
courts  of  inqui-  But  for  the  army  of  the  United  States,  courts 

ry  authorized  » 

bylaw.  of  inquiry  have  been  specially  authorized  by  le- 

gal enactment,  and  the  91st  and  the  92nd  arti- 
cles of  war  embody  all  the  provisions  in  relation 
thereto. 

Who  may  order       The  origin  and  purposes  of  such  courts,  would 

courts  of  in-  ' °  . 

naturally  lead  to  the  conclusion  that  they  are  of 
the  essence  of  high  command ;  and  therefore  the 


COURTS    OP    INQUIRY.  273 

right  to  convoke  them,  under  all  the  legal  restric-  CHAPTER 
tions,  is  properly  confined  to  the  President  of  the  xm' 
United  States,  a  general  commanding  an  army, 
or  a  colonel  commanding  a  department ;  and  in 
die  cases  of  enlisted  men,  the  commanding  offi- 
cer of  the  regiment.  It  has  indeed  been  claim- 
ed, that  the  right  exists  in  the  commander  of  a 
"  fort,  garrison,  or  barrack,"  &c.,  "  where  the 
troops  consist  of  different  corps,"  but  this  is 
thought  to  be  an  erroneous  opinion,  and  if  ad- 
mitted, would  extend  the  privilege  beyond  the 
proper  bounds,  and  encroach  upon  the  spirit  of 
the  prohibition,  so  jealously  declared  in  the  last 
clause  of  the  92nd  article  of  war. 

Courts  of  inquiry,  being  invested  witn  power  Examine  wit- 
to  examine  witnesses  on  oath,  partake  neces- 
sarily, to  a  certain  degree,  of  the  character  of  a 
judicial  body  ;  and  their  proceedings  are  conse- 
quently marked  by  great  precision;  though  as 
regards  documentary  evidence  the  same  strict- 
ness is  not  always  observed,  as  would  be  requir- 
ed by  courts-martial  having  power  to  try  and 
sentence. 

In  the  treatise  on  "  the  practice  of  courts-mar-  investigation 
tial,"  by  Major  Hough,1  the  author  considers  the  quiry  preSL^" 
examination  of  the  witnesses  on  oath,  as  preclu-  nary  to 
ding  a  trial  subsequently ;  for  says  he, — "  if  the 
witness  were  examined  on  oath  and  a  general 
court-martial  was  afterwards  assembled,  it  would 
amount  to  a  second  trial."     This  opinion  is  not 
acknowledged  as  just,  and  would  conflict  not 
only  with  the  objects  contemplated  by  an  inves- 
tigation by  a  court  of  inquiry,  but  with  the  re- 
straints which  were  purposely  introduced  into 

1  Page  26. 

35 


274  COURTS    OF    INQUIRY. 

CHAPTER  the  law  for  the  special  protection  of  the  ac- 
xm>  cused  party.  The  fact  that  "  the  parties  accus 
ed  shall  also  be  permitted  to  cross-examine  and  in- 
terrogate the  witnesses,"  gives  to  the  proceedings 
of  these  courts  much  of  the  appearance  of  a  trial. 
But  it  must  be  recollected,  that  such  cross-exam- 
ination of  the  witnesses,  is  for  the  purpose  of 
explanation  only,  not  to  enable  the  court  to  pass 
judgment,  but  to  ascertain  facts.  A  trial  is 
where  a  body  having  jurisdiction  and  powers, 
investigates,  and  passes  judgment :  by  it  there- 
fore the  crime  is  not  alone  measured  and  declar- 
ed, but  the  criminal  punished.  An  inquiry,  on 
the  contrary,  while  it  investigates  or  examines 
the  circumstances  of  the  accusation  or  the  impu- 
tation alleged,  does  not  stigmatize  the  party  by 
a  declaration  of  guilt,  but  simply  reports  facts, 
and  when  required,  an  "  opinion  on  the  merits 
of  the  case,"  which  ought  to  express  only,  the 
propriety  or  expediency,  or  otherwise,  of  further 
Opinion  as  to  military  proceedings  in  the  case : — For  "  when 
p^oSedSS!*17  facts  attaching  to  the  conduct  of  individuals,  are 
submitted  to  the  investigation  of  courts  of  inqui- 
ry, with  a  view  to  ascertain  the  expediency  of 
a  court-martial,  it  would  seem  to  accord  with 
ordinary  conceptions,  as  to  justice,  that  the  opin- 
ion, if  any  be  required,  should  be  confined  to  that 
particular  point;  especially  if  it  express  the  ne- 
cessity of  trial,  since  the  information  may  be 
ex  parte,  and  must  from  its  nature  be  inconclu- 
sive."1 And,  "  the  court  should  not  pronounce 
any  opinion  as  to  the  guilt  of.  the  accused,  be- 
Does  not  pro-  cause  according  to  the  spirit  of  the  English  law 
every  one  is  presumed  to  be  innocent,  till  the  con- 

1  Simmons,  p.  81. 


COURTS    OF    INCII.RY.  275 

trary  is  established  by  the  oaths  of  competent     CHAPTER 

and  credible  witnesses.     The  giving  an  opinion XIIIt 

in  the  above  qualified  manner  may  assist  the  com- 
mander in  chief,  and  can  in  no  way  prejudice  the 
accused,  because  the  opinion  ought  not  to  be 
made  public,  and  the  members  of  the  court  are 
precluded  from  sitting  as  members  on  the  gene- 
ral court  martial  if  it  should  be  assembled,  the 
necessity  of  which  the  commander  in  chief  is  to 
judge  of."1 
As  it  always  has  been  thought  that  the  discre-  The  appoint- 

, .          i  /.  .  .  -.  j    ment  of  courts 

tional  power  to  summon  courts  of  inquiry  would  Of  inquiry  re- 
prove dangerous   to   professional   character,   or 
military  merit,  the  law  has  restricted  the  conve- 
ning of  such  courts,  unless  ordered  by  the  pre- 
sident, or  demanded  by  the  accused.     This  court  Powers  of  court 
has  the  same  power  to  summon  witnesses,  as  a  sui^KS 
court-martial,  which  now  (unwisely)  can  exert 
no  compulsory  authority  except  in  the  case  of 
military  persons. 

From  the  nature  of  the  proceedings,  it  does  Accused  party 
not  seem  obligatory  upon  the  accused  to  take  any  part  inVo^ed- 
part  in  the  inquiry,  though  he  cannot  refuse  to  mgs' 
obey  an  order,  directing  him  to  appear  before  the 
court. 

The  accused,  nevertheless,  has  a  positive  right  Right  of  the  ac- 
to  be  present  at  an  investigation  should  he  so  se^t. 
prefer,  and  this  is  evident  from  that  clause  in 
the  ninety-first  article,  which  gives  to  him  the 
right   "  to   cross-examine    and    interrogate   the 
witness."      The  accused  however   can   hardly  Advantage  of 
fail  to  be  benefitted  by  his  attendance,  as  he  may 
avail  himself  of  the  opportunity  to  explain  any 
transaction  from  which  an  imputation  prejudicial 

1  Hough's  Mil.  Law  Authorities,  p.  28. 


276  COURTS    OF    INQUIRY. 

CHAPTER     to  him  may  have  arisen.    By  attendance  he  is 
XIII>        also  made  acquainted  with  the  substance  and 
nature  of  the  evidence  to  be  brought  against  him 
in  case  of  ulterior  proceedings  ;  and  also  enabled 
to  perceive  any   material   discrepancies   which 
might  exist,  between  the  evidence  of  any  wit- 
ness, before  the  court  of  inquiry  and  the  court- 
martial. 
Accused  not          As  it  is  a  principle  well  understood  in  the 

bound  to  an-         ..  /.    i       -i 

swer  to  what     jurisprudence  of  the  land,  that  no  person  can  be 

may  criminate  .  .  .     . 

himself.  called  upon  to  criminate  himself ;  it  is  therefore 

settled,  that  the  accused  cannot  be  required  to 
answer  any  questions  .which  may  tend  to  such 
result. 

counsel  allow-  The  parties  before  a  court  of  inquiry,  that  is, 
both  the  accuser  and  defendant,  may  be  allowed 
counsel,  or  friends  to  be  present ;  and  this  be- 
cause the  principal  object  is  to  ascertain,  by  the 
examination  of  witnesses  on  both  sides,  whether 
there  is  ground  for  a  trial ;  and  the  presence  of 
such  persons  may  be  useful  by  inducing  the  ac- 
cused to  afford  explanations. 

courts  of  in-  Courts  of  inquiry  may  be  either  open  or 
closed,  depending  upon  the  nature  of  the  trans- 
actions to  be  investigated.  The  court  decide 
this  question  of  procedure,  or  it  is  ordered  by  the 
authority  convoking  the  court.  The  propriety 
of  this  discretion  is  evident,  as  there  may  be 
matter  before  the  court  of  too  delicate  a  nature 
to  be  made  public,  or  questions  pertaining  to 
public  interests  which  might  be  prejudiced  by 
such  publicity.  It  is  in  most  cases  of  complaint, 
usual  to  allow  the  court  to  be  an  open  one.1 
The  duties  and  powers  of  a  court  of  inquiry, 

i  Hough's  Mil.  Law  Authorities,  p.  2. 


COURTS    OF    INQUIRY.  277 

are  denned  to  be,  "  to  examine  into  the  nature     CHAPTER 
of   any  transaction,  accusation,  or  imputation,        xni* 
against  any  officer  or  soldier,"  and  to  give  an  pD0'JJrssand 
opinion  on  "  the  merits  of  the  case,  when  they 
shall  be  thereto  specially  required;" — and  not 
otherwise.     Thus  the  purposes  of  such  courts 
are  clearly  declared,  and  abuses,  by  assigning  to 
them  other  duties  which  may  affect  the  standing 
of  an  officer  or  soldier,  guarded  against. 

The  particular  attention  of  the  court  is  called  instructions 

.  given  by  the 

to   certain  parts  of  the  matter  to  be  inquired  authority  which 

.  .  appoints  the 

into,  by  the  authority  ordering  the  court  to  as-  court. 
semble,  whenever  such  may  be  thought  advisa- 
ble ;  and  the  order  will  always  state  whether 
the  court  is  to  report  the  facts,  and  likewise 
whether  an  opinion  on  the  merits  is  required. 
The  court  should  be  well  instructed  as  to  the 
extent  of  the  investigation,  that  is,  whether  it  is 
to  be  general,  or  whether  particular  points  only 
are  to  be  examined  into ;  and  the  court  is  strictly 
to  limit  its  proceedings,  and  the  extent  of  its  in- 
quiry, by  the  order  convening  it,  or  by  instruc- 
tions emanating  from  the  same  source. 

It  is  evident,  from  the  restrictions  which  the  Not  to  depart 
law  has  imposed  upon  courts  of  inquiry,  that  Sa^Sbjrcfof 
such  courts  are  to  confine  themselves  in  their  investigation- 
examination,  to  the  particular  subject  or  sub- 
jects laid  before  them ;    to   depart  therefrom, 
would  be  to  transcend  their  authority.1 

When  the  court  is  required  to  report  the  facts  Facts  are  not 
of  the  case,  it  is  not  considered  as  complying  mEgdthyes"t 
with  the  order  to  submit  the  record  and  testi-  statementcinnst 


be  made. 

1  Should  a  court  of  inquiry  fall  below  the  number  indicated  in 
the  order  convening  it,  the  court  could  not  continue  proceedings 
without  authority  so  to  do  from  the  same,  or  competent  authority. 


278  COURTS    OP    INQ.UIEY. 

CHAPTER     mony.     By  the  facts  to  be  reported,  it  is  under- 

3CUr'       stood,  the  result  or  conclusion  of  the  court,  from 

the  hearing  of  the  evidence,  and  therefore  to  be 

distinctly  set  forth,  as  the  court  believe  to  be 

correct  or  true. 

Member  may  be       It  seems  to  be  a  settled  principle  now,  that  a 

challenged. 

member  of  a  court  of  inquiry  may  be  challenged 
for  cause  by  either  party.  A  precedent  of  this 
kind  is  to  be  found  in  the  proceedings  of  the 
court  of  inquiry,  in  the  case  of  Brevet  Major 
General  Gaines,  held  at  Frederick,  Maryland, 
January  7th,  1837. 

The  reasons  for  the*  establishment  of  such  a 
right  are  obvious.  Courts  of  inquiry,  in  our  ser- 
vice, are  sworn,  as  well  as  the  witnesses  who 
are  called  for  examination.  The  parties  have 
the  right  of  cross-interrogation,  and  the  whole 
proceedings,  with  the  exception  of  the  power  of 
the  court  to  decide,  partake  much  of  the  char- 
acter of  a  trial ;  and  when  an  opinion  on  the 
merits  of  the  case  is  required  to  be  given  by  the 
court,  it  is  of  essential  interest,  that  such  opinion 
should  be  the  result  of  candid  investigation  and 
unprejudiced  feeling.  An  opinion,  though  not 
decisive  of  the  question  of  guilt  or  innocence,  is 
nevertheless  operative  upon  public  opinion,  or 
individual  sentiment,  and  therefore  may  as  surely 
tend  to  the  hurt  of  the  defendant,  as  an  unjust 
or  prejudiced  decision  by  a  court-martial.  If 
any  doubt  should  exist,  however,  as  to  the  pro- 
priety of  exercising  this  right,  the  right  itself 
should  not  be  gainsayed,  when  it  is  remembered 
that  the  indulgence  of  it  is  always  subject  to  the 
discretion  of  the  court,  and  can  never  be  detri- 
mental to  a  just  inquiry. 


COURTS    OF    INQUIRY.  279 

The   hours  of  sitting  are    not   limited    for     CHAPTER 
courts  of  inquiry.     The  restriction  imposed  by        xnit 

the  75th  article  of  war,  that  no  "  proceedings  or  J^iSSd!1"* 
trials  be  carried  on,  excepting  between  the  hours 
of  eight  in  the  morning,  and  three  in  the  after- 
noon," is  only  applicable  to  courts-martial. 

The  accused  cannot  demand  a  copy  of  the  Accused  cannot 

documents  recorded  in  the  proceedings,  as  the  doTumemsTnor 

.  .  i  *      •  ,'iv  i  xi        of  the  proceed- 

inquiry  is  a  preliminary  to  trial  only,  and  the  ings. 
evidence,  of  whatever  nature,  is  intended  for  the 
authority  ordering  the  court.  Nor  is  there  any 
legal  right  to  demand  a  copy  of  the  proceedings. 
It  is  only  in  the  case  of  a  trial,  by  a  general  court- 
martial,  that  the  party  tried,  upon  demand  made 
by  himself,  or  by  another  person  or  persons  in 
his  behalf,  is  entitled  to  a  copy  of  the  sentence 
and  proceedings  of  such  court-martial.1 

Contempts  before  courts  of  inquiry,  are  as  contempts  pun- 
much  punishable  as  though  they  were  commit- 
ted before  courts-martial.    Officers  may  be  placed 
in  arrest,  and  soldiers  may  be  confined  by  order 
of  the  court. 

The  accused  officer  before  a  court  of  inquiry, 
is  not  under  arrest  unless  there  exists  some  ne- 
cessity for  it. 

The  proceedings  of  a  court  of  inquiry,  are  au-  Proceedings 
thenticated  by  the  signatures  of  the  recorder  or 


judge  advocate,  and  the  president ;  and  they 
may  be  admitted  as  evidence  by  a  court-martial, 
in  cases  not  capital,  or  extending  to  the  dismis- 
sion of  an  officer ;  provided,  that  the  circumstan- 
ces are  such,  that  oral  testimony  cannot  be  ob- 
tained. The  proceedings  may  be  revised,  and 
as  the  opinions  of  such  courts  are  not  expressive 

i  90th  Article  of  War. 


280  COURTS   OF    INQU1RV. 

CHAPTER     of  the  guilt  or  innocence  of  the  accused  party, 

XIIL        they  may  be  revised  more  than  once.     In  this 

respect,  it  appears  there  is  a  difference  between 

them  and  the  proceedings   of  a  court-martial. 

(see  chap.  10.)1 

ve^afon'to1        Charges,  or  a  statement  in  writing,  or  docu- 
be  submitted  in  ments  are  submitted  to  the  court,  which  are  to 

writing. 

be  investigated ;  and  the  instructions  which  are 
given  for  the  court's  guidance,  are  not  to  be  de- 
viated from. 

interpreter.  If  it  should  be  required,  an  interpreter  is  ap- 

pointed. 

Not  sworn  to        Courts  of  inquirv,  it  will  be  seen  by  reference 

secrecy,  but  arj  *        ~  '  * 

to  observe  it.  to  the  oath,  prescribed  in  the  93d  article  of  war, 
are  not  bound  to  secresy  as  to  either  individual 
votes,  or  the  general  opinion;  still,  there  is  a 
general  propriety  that  no  member  shall  disclose 
such,  because  the  expression  of  opinion  might 
prejudice  the  accused  party,  in  case  of  a  trial  by 
court-martial.  Where  the  authority  ordering  the 
court  of  inquiry,  deems  the  proceedings  of  such 
a  nature  as  to  preclude  a  further  investigation, 
it, would  certainly  be  a  breach  of  decorum,  or  of 
military  discipline,  on  the  part  of  a  member  of 
a  court  of  inquiry,  to  disclose  or  publish  the 
opinions  of  the  members,  or  the  opinion  of  the 
court,  without  the  sanction  of  the  superior  offi- 
cer to  whom  the  whole  proceedings  had  been 
submitted. 

In  the  work  compiled  by  the  late  Major  Gen- 

1  There  is  no  restriction  by  law  against  reviewing  the  proceed- 
ings of  a  court-martial  more  than  once.  The  principle  however 
which  makes  such  procedure  objectionable  is  so  obvious,  that  it  is 
generally  considered  as  improper,  or  repugnant  to  justice.  In  the 
British  service  there  is  a  special  provision  of  law  which  forbids  it. 


COURTS    OF    INQ.UIRY.  281 

eral  Alexander  Macomb,  entitled  "  The  Practice     CHAPTER 

of  Courts-martial,"  it  is  laid  down  as  a  princi- *nr> 

pie,  (page  94,)  that  "  transactions  may  become 
the  subject  of  investigation  by  courts  of  inquiry 
after  a  lapse  of  any  number  of  years,  on  the  ap- 
plication of  the  party  accused,  or  by  order  of 
the  president  of  the  United  States  ;  the  limita- 
tion mentioned  in  the  88th  article  of  war,"  being 
applicable  only  to  general  courts-martial." 

The  doctrine  here  stated,  is  one  to  which  the  Time  limited 

,  .for  the  investi- 

author  cannot  fully  accede, — the  more  particu-  gation  of  offen- 

„.  •   i        i  •«  •  .ces>  by  courts 

larly,  as  it  conflicts  with  the  opinion  m  a  pre-  of  inquiry. 
vious  chapter,  respecting  the  right  of  the  presi- 
dent to  dismiss  a  commissioned  officer  from  the 
service  without  trial.  The  opinion  contained  in 
the  last  mentioned  work,  seems  to  have  for  its 
basis,  the  rule  and  principles  adopted  and  under- 
stood, for  the  regulation,  in  that  particular,  of 
the  British  army.  It  has  been  before  stated, 
that  the  origin  of  courts  of  inquiry  is  derived 
from  custom,  and  that  in  England  it  is  consider- 
ed as  an  inherent  right  of  the  crown  to  appoint 
courts  of  inquiry,1  but  that  with  us  it  is  expli- 
citly the  creation  of  law.  As  it  is  the  preroga- 
tive of  the  crown  to  dismiss  officers  from  the  ser- 
vice without  a  hearing,  it  may  truly  be  viewed 
as  a  favor,  whenever  a  court  of  inquiry  is  ap- 
pointed, by  which  an  accused  person  may  have 
an  opportunity  of  justifying  himself.  Under  our 
government,  where  such  prerogative  or  power  is 
questionable  to  the  chief  magistrate,  and  an  act 
which  specially  confers  the  authority  to  appoint 

1  Hough,  p.  436.     See  also  case  of  "  Home  vs.  Lord  Bentick," 
for  a  libjl. 

36 


282  COURTS    OF    INQUIRY. 

CHAPTER     such  courts  of  inquiry,  the  same  argument  can- 
xm-       not  apply. 

By  the  88th  article  of  war  it  is  declared,  that 
"  no  person  shall  be  liable  to  be  tried  and  pun- 
ished by  a  general  court-martial,  for  any  offence 
which  shall  appear  to  have  been  committed 
more  than  two  years  before  the  issuing  of  the 
order  for  such  trial,  unless  the  person,  by  reason 
of  having  absented  himself,  or  some  other  man- 
ifest impediment,  shall  not  have  been  amenable 
to  justice  within  that  period/'1 
Purposes  of  Now  what  are  the  grounds  upon  which  all 

itatutes  of  limi-  .  r 

statutes  of  limitation  are  founded,  but  for  the 
sole  purpose  of  preventing  vexatious  and  con- 
tinued litigation,  or  malicious  prosecutions  ;  and 
that  too  at  the  manifest  hazard  of  great  injustice 
to  defendants,  when,  from  the  lapse  of  time,  the 
true  and  necessary  testimony  may  be  lost  or 
weakened,  by  the  decay  of  memory  or  the  death 
or  absence  of  witnesses.  And  shall  not  this 
shield,  under  every  and  all  circumstances,  be  ex- 
tended to  military  persons,  where,  from  the  very 
nature  of  their  employment,  and  the  transactions 
in  which  they  are  actors,  evidence  is  much  more 
likely  to  be  dispersed  or  lost,  and  subject  to 
greater  chances  of  doubt,  than  in  the  ordinary 
walks  of  civil  life  ?  And  yet,  under  the  vicissi- 
tudes of  a  camp  life,  some  would  contend,  that 
after  the  lapse  of  any  number  of  years,  an  in- 
quiry into  the  conduct  of  any  person  may  be  in- 
stituted, by  which  reputation  may  be  endanger- 
ed, and  such  a  question  determined  by  any 
chance  evidence  which  may  be  gathered, — and 

i  As  there  is  no  act  of  limitation  for  the  navy,  the  same  legal 
objection  does  not  therefore  apply  to  the  service. 


COURTS    OP    INQUIRY.  283 

with  such  marks  of  dubiety  impressed  thereon,     CHAPTER 
as  would  make  a  court-martial  reject  it  as  insuf-       xm>     _, 
ficient.     Would  not,  therefore,  the  assumption  of 
such  power  be  most  oppressive  ?     The  true  pur- 
pose to  be  attained  by  a  court  of  inquiry,  is  to 
ascertain  whether  there  be  grounds  for  conven- 
ing a  court-martial  to  investigate  the  charges,  or 
not ;  and  such  a  pretext  cannot  possibly  exist, 
where  the  facts  charged  have  arisen  at  a  period 
beyond  the  retrospection  of  a  court-martial. 

Such  too  is  the  view  of  the  subject  taken  by 
one  of  the  most  able  and  approved  writers  on 
the  constitution  and  practice  of  courts-martial  in 
the  British  army  j1  in  which  he  acquiesces  in  the 
doctrine,  as  far  as  it  concerns  the  prerogative  of 
the  sovereign,  but  expressly  opposes  the  assump- 
tion of  such  power  by  any  authority  subordinate 
to  the  crown.  "  Nor  can  he  (the  accused)  un- 
der any  circumstances,  after  the  time  limited  for 
a  court-martial,  by  the  mutiny  act,  obtain  a 
hearing  of  his  case  by  any  tribunal  competent  to 
decide  on  it.  Surely  then,  justice  forbids  inves- 
tigation by  a  court  of  inquiry,  which  may  coun- 
tenance malicious  accusations,  or  give  rise  to, 
and  ferment  prejudices,  which  it  cannot  allay, 
and  of  which  it  cannot  pave  the  way  for  trial ; 
and  particularly  as  the  members  who  compose 
the  court — are  so  limited  in  number  and  irre- 
sponsible to  any  superior  tribunal  for  the  opinion 
they  may  give."2 

1  Simmons.  3  Ibid.,  p.  85. 


CHAPTER 
XIV. 

General  rule. 


CHAPTER  XIV. 

OF  THE   CHARGES. 

"  IT  is  a  general  rule  that  no  person  shall  be 
excused  from  punishment  for  disobedience  to  the 
laws  of  the  country,  unless  he  be  expressly  de- 
nned, and  exempted  by  the  laws  themselves  :m 
and — 
written  state-  "  Every  person  at  the  age  of  discretion  is,  un- 

ment  of  the  J    ' 

crime  required,  less  the  contrary  be  proved,  presumed  by  law  to 
be  sane,  and  to  be  accountable  for  his  actions."2 
The  eightieth  (80th)  article  of  war  has  made 
provision  for  a  written  account  of  the  crime 
with  which  any  prisoner  is  charged ;  and  it  is 
therefore  a  matter  of  importance  that  the  prin- 
ciples upon  which  the  declaration  of  offences 
are  founded  should  be  well  understood.  The 
propriety  or  necessity  of  having  established 
rules  for  our  guidance  in  these  matters,  is  ob- 
vious upon  the  slightest  reflection ;  and  the  priv- 
ileges and  protection  which  the  constitution  and 
law  extend  to  every  citizen  might  otherwise,  by 
a  loose  or  vague  method,  be  denied  or  annulled.3 
The  public  interest,  therefore,  connected  with 
the  military  service,  as  well  as  the  particular 
rights  and  safety  of  individuals  are  involved  in 
the  manner  in  which  charges  are  preferred,  and 
trials  before  military  tribunals  of  justice  con- 

i  4  Black.  Com.,  20.  2  Archbold's  Grim.  Plead. 

3  5th  Amendment,  and  87th  Article  of  War. 


OF    THE    CHARGES. 


ducted.  Precision  in  the  prosecution  of  crimes ;  CHAPTER 
regularity  in  procedure ;  and  certainty  of  XIV- 
punishment,  are  materially  dependent  upon 
these  rules;  and  economy  of  time  and  money 
follows  as  a  consequence  of  their  observance. 
In  the  remarks  offered  upon  this  subject,  it  is 
only  intended  to  notice  the  most  prominent 
points,  which  present  themselves  for  considera- 
tion, and  which  are  deemed  sufficient  to  lead 
the  reader  to  a  just  understanding  and  apprecia- 
tion of  the  principles  embraced  therein.  To 
attempt  a  full  and  minute  exposition  of  this 
branch  of  our  subject  would  evidently  require 
too  great  a  space  for  the  proposed  limits  of 
this  treatise.  A  brief  statement  therefore  is  all 
that  will  be  attempted,  and  indeed  it  may  be 
said,  all  that  is  really  to  be  desired  in  a  work  of 
this  description.  While  precision  and  concise-  Technical  nic» 
ness  are  requisite  to  be  observed  in  framing 
charges  of  military  offences,  it  is  nevertheless  charges- 
unnecessary  that  the  technical  strictness  used  in 
an  indictment  should  be  followed.  The  minu- 
tiae of  the  ordinary  courts  of  law  would  swell 
the  proceedings  of  military  courts  to  an  incon- 
venient extent,  were  they  followed  in  the 
charges  or  pleadings  of  the  latter,  and  with  no 
material  benefit  to  their  ultimate  decisions.  Yet 
there  are  certain  points  which  require  exactness 
in  the  one  as  in  the  other  court,  and  it  is'  to 
these  particular  parts  that  our  observations  are 
intended  to  apply. 

It  has  been  observed,  "  that  the  strictness  re- 
quired in  indictments  was  grown  to  be  a  blemish 
and  inconvenience  in  the  law  and  the  adminis- 
tration thereof;  that  more  offenders  escape  by 


286  OP    THE    CHARGES. 

CHAPTER     the  over-easy  ear  given  to  exceptions  to  indict- 
ments, than  by  the  manifestation  of  their  inno- 


cence, and  that  the  grossest  crimes  had  gone  un- 
punished by  reason  of  these  unseemly  nice- 
ties."1 
Absence  of  reg-       if  the  subtle  distinctions  thus  observed  in  the 

ular  and  consis- 
tent rules  an  administration  of  criminal  justice  by  the  ordi- 
nary law  courts,  have  been  productive  of  the 
evil  noticed  in  the  above  passage,  it  is  to  be 
feared  that  the  want  of  a  regular  and  consistent 
rule  for  the  guidance  of  courts-martial,  has  led 
to  consequences  frequently  of  a  very  different 
character ;  and  it  may  be  said,  perhaps,  that  the 
want  of  some  nicety  in  the  statement  of  the 
charge  has  at  times  led  to  the  punishment  of 
an  innocent  person,  or  at  least  to  judgment  for  a 
crime,  which  the  facts  alleged  did  not  constitute. 
To  avoid  the  over  nicety  of  the  first,  and  the 
vagueness  of  the  latter  practice,  is  the  necessary 
rule  to  be  attained. 
Definition  of  a  A  military  charge  is,  in  the  nature  of  an  in- 

jwilitary  charge 

«r  accusation,  dictmcnt,  a  written  accusation  against  any  per- 
son or  persons,  subject  to  military  control.  It  is 
a  plain,  brief,  and  certain  narrative  of  the  offences 
committed,  and  of  those  necessary  circumstances 
that  concur  to  ascertain  the  fact,  and  its  nature  ;a 
and  a  charge  of  this  character  will  lie  against 
all  military  persons,  (under  the  rules  and  articles 
of  war,)  who  actually  commit  crimes  against  the 
military  laws,  the  regulations  for  the  service,  or 
orders,  and  the  custom  of  war,  &c.,  &c. 
certainty  of  ie-  Now  with  what  certainty  of  legal  terms  and 
charge.  l  language  should  a  charge  be  framed?  It  has 
been  already  remarked,  that  military  offences  or 

i  Lord  Hale.  *  Ibid. 


OF   THE    CHARGES.  287 

crimes  do  not  require  to  be  set  forth  with  tech-  CHAPTER 
nical  strictness  and  nicety ;  if  such  were  the  XIV- 
practice  it  would  much  encumber  the  proceed- 
ings of  military  courts,  without  any  substantial 
benefits,  and  make  necessary  a  body  of  legal 
men,  or  lawyers,  for  the  guidance  •  and  adminis- 
tration of  military  justice.  But  although  this 
technical  nicety  is  not  required,  still  in  every 
charge  there  should  be  such  precision  and  cer- 
tainty, in  "  the  description  of  the  offence,  that  the 
defendant  may  know  what  crime  it  is  which  he 
is  called  upon  to  answer ;  that  the  court  may 
appear  to  be  warranted  in  their  conclusions  of 
guilty,  or  not  guilty,  upon  the  premises  delivered 
to  them,  and  that  they  may  see  such  a  definite 
crime,  that  they  may  apply  the  punishment 
which  the  law  prescribes.  This  is  what  is 
meant  by  the  different  degrees  of  certainty  men- 
tioned in  the  books ;  and  it  consists  of  two 
parts — the  matter  to  be  charged,  and  the  manner 
of  charging  it.  As  to  the  matter  to  be  charged, 
whatever  circumstances  are  necessary  to  consti- 
tute the  crime  imputed,  must  be  set  out.  Where 
the  crime  is  a  crime  independently  of  such  cir- 
cumstances, they  may  aggravate,  but  do  not  con- 
tribute to  make  the  offence."1 

The  charge  therefore  must  be —  Requirements 

ci      •  l  •    '  -r  -i  °*  a  charSe- 

1.  strict  and  positive. — It  must  not  be  sta-  strict  and 
ted  argumentatively,  but  be  alleged  in  express 

and  positive  language ;  and  it  is  particularly 
essential  that  it  be  not  repugnant  or  inconsistent 
with  itself,  for  the  law  will  not  admit  of  absurd- 
ity and  contradiction  in  legal  proceedings.2 

2.  Certain  as  to  \he  party  accused. — The  de- 

1  King  v.  Home,  Cowp.  672.         2  Chitty's  Crira.  Law,  p.  230. 


288  OF   THE    CHARGES. 

CHAPTER     fendant  must  be  described  by  his  title  or  rank, 

XIY-        Christian  name,  and  surname,  and  the  addition 

Se'^reoiTac-  °^  tne  company,  regiment,  or  corps,  to  which  he 

cusedT  belongs.     The  difficulties  which,  in  civil  courts 

of  criminal  jurisdiction,  sometimes  arise   from 

ignorance  of  the  name  of  a  party,  can  hardly 

ever  happen  in  military  life,  and  therefore  the 

danger  of  a  misnomer  does  not  occur. 

t      certainty  as  to       3.   Certain  as  to  time  and  place. — If  the  pre- 

time  and  place.       .  ... 

cise  date  of  a  fact  be  a  necessary  ingredient  in 
the  offence,  it  must  be  truly  stated,  and  the  same 
as  to  place.  By  time  making  an  ingredient  of 
the  offence,  is  understood  when  the  same  cir- 
cumstances or  conduct  would,  on  one  occasion, 
constitute  a  particular  crime,  though  at  another 
it  would  be  different  in  its  character.  Thus  an 
officer  charged  with  being  drunk  on  duty,  under 
the  45th  article  of  war,  it  would  be  necessary  to 
set  forth  the  nature  of  the  duty,  and  the  precise 
day,  or  so  nearly,  that  the  time  should  not  be 
confounded  in  the  testimony,  and  thus  lead  the 
court  to  adjudge  him  guilty  of  a  crime,  the  pen- 
alty for  which  is  arbitrarily  fixed  by  the  law. 
The  crime  here  alluded  to,  is  made  a  specific 
offence ;  and  in  order  to  bring  an  offender  within 
its  sanction,  it  must  be  strictly  stated  according 
to  the  language  of  the  article. 

The  practice  of  courts-martial  has  permitted 
a  wide  latitude  as  to  the  time  specified  in  the 
charge.  In  some  cases  there  has,  doubtless, 
been  much  error  committed  therein.  The  limit 
of  time,  within  which  the  commission  of  any 
act  alleged  as  an  offence  may  be  laid,  is  much 
more  extended  by  the  indulgence  of  courts-mar- 
tial, than  is  permitted  by  the  ordinary  courts  of 


OF    THE    CHARGES.  289 

criminal  jurisdiction.  This  is  ai»  imperfection  in  CHAPTER 
military  charges  which  should  bo  cured.  Tytler,  xnr' 
in  his  "  Essay  on  Military  Law/'  says  that  "  the 
prosecutor  is  allowed  some  latitude  with  respect 
to  time,  and  provided  the  charge  is  in  other  re- 
spects sufficiently  precise,  he  may  charge  the 
fact  or  facts  to  have  been  committed  on  such  a 
day,  of  such  a  month,  or  on  one  or  other  of  the 
days  of  that  month,  or  of  the  month  immediately 
following.  But  as  this  is  an  indulgence  granted 
only  from  necessity,  so  in  no  case  where  it  is 
possible  for  the  prosecutor  to  mark  the  time  with 
certainty  and  precision,  ought  he  be  allowed  such 
latitude  as  that  above  mentioned,  as  it  deprives 
the  prisoner  of  all  opportunity  of  proving  an 
alibi." 

It  is  generally  laid  down  by  military  writers, 
that  the  same  minuteness  and  precision  ought  to 
be  observed  in  specifying  the  time  and  place,  as 
is  required  for  the  statement  or  description  of 
the  offence.  As  to  the  circumstance  of  place, , 
it  is  always  possible  for  the  prosecutor  to  be 
pointed  and  exact,  and  therefore  should  not  be 
dispensed  with  in  the  framing  of  the  charge.  If 
a  doubt  be  entertained  as  to  the  precise  time,  it 
may  be  set  forth,  as  "  on  or  about  such  a  day," 
but  embracing  a  reasonable  space  of  time  only ; 
and  where  the  time  enters  into,  and  forms  an  in- 
gredient of  the  offence,  the  court  should  be  care- 
ful that  the  period  included  in  the  declaration 
be  not  such  as  to  cause  any  difficulty,  by  the  evi- 
dence, of  ascertaining  the  true  time. 

In  the  case  of  Captain  Eustace  Trenor,  who  caseofCaptam 
was  accused  by  the  charge  2nd,  of  drunkenness  2?*0*' 
on  duty : 

37 


OP   THE    CHARGES. 


CHAPTER         Specification. — "  In  this  that  the  said  Captain 

ylvr'        Eustace  Trenor,  of  the  1st  regiment  of  dragoons, 

when  on  duty  as  officer  of  the  day  at  Fort  Lea- 

venworth,  between  the  1st  day  of  September 

and  the  31st  day  of  December,  1840,  was  drunk." 

On  being  arraigned  he  pleaded  as  follows  : — 

Captain  Trenor  "  declines  pleading  to  the  2nd 
charge  and  its  specification,  inasmuch  as  it  in- 
cludes such  a  length  of  time  as  to  prevent  the 
possibility  of  either  disproving  it,  or  defending 
himself  against  it ;  and  he  therefore  hopes  the 
court  will  not  Entertain  it." 

The  objections  of  the  accused  were  sustained 
by  the  court,  and  the  2nd  charge  and  its  specifi- 
cation, were  accordingly  thrown  out. 

This  decision  of  the  court  was  undoubtedly 
founded  upon  good  and  substantial  grounds. 

The  fact  of  detail  and  duty  as  officer  of  the 
day,  at  every  military  station,  is  a  matter  of  re- 
cord, and  easily  to  be  referred  to  in  the  guard- 
reports,  and  the  files  of  the  adjutant's  office ;  it 
therefore  was  in  the  power  of  the  accuser  to 
have  stated  the  time  more  accurately.  By  the 
214th  par.  general  regulations  for  the  army,  it  is 
said,  "  it  is  highly  improper  to  hold  charges 
against  an  officer  or  soldier,  in  order  that  they 
may  accumulate ;"  and  in  this  case,  if  any  wit- 
ness had  sworn  that  the  prisoner  was  drunk 
when  on  duty  as  officer  of  the  day,  between  the 
days  indicated,  it  would  have  been  simply  as  his 
belief,  according  to  memory,  and  the  prisoner 
could  not  have  disproved  the  allegation,  by  show- 
ing the  particular  day  or  days  when  he  was  on 
duty  as  officer  of  the  day.  This  appears  more 
clearly  when  it  is  stated  that  the  trial  did  not 


OF    THE    CHARGES.  291 

take  place  until  the  month  of  December,  1841,     CHAPTER 
more  than  a  year  from  the  time  of  the  alleged        XIV' 
offence. 

Although  there  is  no  military  crime,  to  ensure  The  precise  day 
conviction  of  which  it  is  essential  that  the  pre-  belated"/6 
cise  day  should  be  set  forth  and  proved,  yet  it 
is  essential,  for  a  conviction  in  some  cases,  that 
the  time  should  be  so  nearly  declared,  that  if 
found,  it  may  not  appear  to  be  a  different  day 
from  the  one  in  which  the  offence  could  have 
been  committed.  That  is,  the  allegation  of  time 
should  be  so  well  ascertained,  as  that  the  alter- 
nate words,  (usually  employed,)  "on  or  about 
the  said  time,"  should  leave  no  doubt  of  their 
truth. 

The  rules  relating  to  the  averment  of  time,  Rule  for  the 
apply,  for  the  most  part,  to  the  averment  of  place. 
place,  and  where  the  time  must  be  repeated  upon 
the  allegation  of  subsequent  acts,  the  repetition 
of  place  is  generally  also  necessary.1 

The  averment  of  time,  in  military  charges, 
may  be  considered  partly  substantial  and  partly 
formal.  Substantial,  since  it  determines  the  of- 
fence to  have  been  committed  within  the  juris- 
diction of  the  court  which  inquires  into  it,  and 
formal,  since  it  is  unnecessary  to  prove  the  act 
to  have  been  committed  at  the  precise  time  al- 
leged, unless  time  itself  be  material  to  constitute 
the  offence.  It  is,  nevertheless,  a  general  rule, 
that  the  time  and  place  of  every  material  fact, 
must  be  plainly  and  consistently  alleged.2 

It  will  readily  be  perceived  that  the  essential  Essential  re- 

_  .         ,  .  .,     quirement  of  a 

of  a  charge  in  these  particulars,  is,  that  the  ol-  charge. 
fence  should  be  clearly  distinguished,  so  that  the 

1  Starkie's  Crim.  Plead.,  p.  61.  »  Ibid. 


292  OP    THE    CHARGES. 

• 

CHAPTER     prisoner  may  have  every  means  of  defence,  at 

***'        the  trial,  which  the  law  allows,  and  that  at  any 

subsequent  period  he  may  be  protected  against 

a   second  trial,  or  punishment,   for  the   same 

crime. 

Certainty  as  to      4:  Certain  as  to  tJie  person  against  ichom  the 

the  person  „  .         7        _,,  .          ~ 

against  whom    offence  icos  co?nmittcd. — There  are  certain  often- 

the  offence  was  '    .  .. .  ,..,.  i  .    i 

committed.  ces  against  military  discipline,  which  may  be 
committed  by  the  abuse  of  the  property  or  per- 
sons of  individuals.  Of  such  class  is  the  viola- 
tion of  the  law  and  regulations  of  the  service  re- 
lative to  the  flogging  of  soldiers  ;  and  of  the  par- 
ticular offences  mentioned  in  the  32nd  and  the 
33d  articles  of  war.  In  all  such,  or  similar 
cases,  where  the  crime  has  been  committed 
against  person  or  property,  the  name  of  the  in- 
jured party  must  be  stated  at  large,  if  the  name 
be  known.  If  at  the  trial,  it  appear  that  the 
party  injured  is  misnamed,  the  variance  is  fatal, 
and  the  prisoner  must  be  acquitted.  Should, 
however,  the  name  of  the  injured  party  be  un- 
known to  the  prosecutor,  he  may  be  described 
in  the  charge  as  a  person  unknown.1  - 

Certainty  as  to       5.  It  must  be  certain  as  to  the  facts,  circum- 

facts,  circum-  .  _  . 

stances  and  in-  stances  and  intent  constituting  the  offence. — That 
is,  as  every  crime  or  offence  consists  of  certain 
acts  done,  or  omitted,  under  certain  circumstan- 
ces, it  is  not  sufficient  that  the  defendant  be 
charged  generally  with  having  committed  it,  but 
the  facts  and  circumstances  must  be  specifically 
set  forth ;  and  the  offence  must  appear  on  the 
face  of  the  charge  as  a  distinct  substantial 
offence.  A  man  cannot  be  charged  with  being 
an  habitual  violator  of  orders,  or  a  common 

i  Archbold's  Crim.  Plead.,  p.  33. 


OP    THE    CHARGES.  293 

thief;  but  the  charge  must  set  forth  every  fact  CHAPTER 
and  circumstance  which  is  necessary,  to  make  XIV> 
up  the  offence.  In  the  ordinary  courts  of  law 
there  are  exceptions  to  this  principle,  growing 
out  of  necessity.  As,  for  instance,  a  man  may 
be  indicted  for  being  a  common  barrator,  with- 
out detailing  the  particulars  of  the  barratry ; — or 
a  woman  may  be  indicted  as  a  common  scold, 
without  detailing  the  particulars  of  her  conduct. 
But  this  cannot  be  done  in  the  military  courts, 
because  there,  particular  acts  or  conduct  consti- 
tute particular  crimes.  Under  this  rule,  there- 
fore, an  officer  could  not  be  charged  with  being 
a  common  liar.  There  is  no  military  law  which 
recognizes  the  specific  offence  of  lying,  but  con- 
duct of  that  character,  according  to  the  atten- 
dant circumstances,  would  necessarily  be  laid 
under  the  eighty- third  (83d)  or  the  ninety-ninth 
(99th)  articles  of  war,  as  conduct  "  unbecoming 
an  officer  and  a  gentleman,"  or  "  prejudicial  to 
good  order  and  military  discipline."  The  par- 
ticular acts  or  circumstances  then  by  which  the 
violation,  or  disregard  of  truth  was  evinced  by 
the  defendant,  must  be  cited  in  the  charge,  and 
thus  be  shown  in  evidence. 

Written  instruments,  where  they  form  a  part  written 
of  the  gist  of  the  offence  charged,  must  be  set 
out  verbatim ;  or  where  part  only  of  the  written 
instrument  is  included  in  the  offence,  that  part 
alone  is  necessary  to  be  set  out ;  and  great  care 
must  be  taken  to  set  them  out  correctly.  The 
recital  of  written  instruments,  which  must  be 
set  out  verbatim,  is  usually  introduced  by  the 
words,  "  according  to  the  tenor  following :"  or, 
" of  the  tenor  following :"  or,  "in  the  words  and 


294 


OP    THE   CHARGES. 


CHAPTER     figures  folloicing  :"  or  by  words  that  imply  tha 
*IV>        a  correct  recital  is  intended. 


substance  of  a       When  the  substance  only  i.s  intended  to  be 

writing  to  be  set  ^^v. 

out.  set  out,  it  should  be  introduced  by  the  words, 

"  in  substance  asfolloics  :"  or  "  to  the  effect  follow- 
ing" The  word  tenor  implies  that  a  correct 
copy  is  set  out. 

Particular  Where  particular  words  are  the  gist  of  the 

words  set  forth.  x 

offence  they  must  be  set  forth  with  particularity, 

or  declared  to  be  of  the  like  meaning  or  purport. 

NO  part  of  the        It  is  necessary  to  observe,  also,  that  no  part 

charge  to  be  in  •  '  • 

figures.  of  the  charge  should  be  in  figures  ;  and,  there- 

fore, numbers,  dates,  ,&c.,  must  be  written  in 
words.  The  exception  to  this  is  where  a  fac 
simile  of  a  written  instrument  is  to  be  set  out  ; 
in  which  case  it  will  appear  in  words  and 
figures,  as  in  the  original  itself. 

of  words  used       With    regard    to    particular  words   used,   it 

with  an  inclu-       1        -,-,-,-,  .  .  i  -,  ',   . 

Bive  or  exclusive  should  be  borne  in  mind,  that  the  word  until  is 

"ense<  •  •  i     • 

capable  of  either  an  inclusive  or  exclusive  sense, 

and,  therefore,  when  used,  had  better  be  stated 
to  mean  inclusive  or  otherwise  —  as,  for  example, 
—  from,  &c.,  until  the  10th  of  November,  1800, 
inclusive,  —  or  exclusive.  But  the  words  from 
and  unto,  when  applied  to  place,  are  construed 
in  an  exclusive  sense  ;  —  as  from  Philadelphia 
unto  Lancaster,  would  be  held  to  exclude  Lan- 
caster; —  so,  to  and  from  the  city  of  Hudson, 
would  exclude  Hudson.1 
Rule  for  the  As  to  the  intent,  or  certainty  of  the  allegation, 

construction  of     ...  .  , 

.anguage.  it  is  a  rule  of  construction,  and  cannot,  therefore, 
add  to  a  sentence  words  which  are  not  impliedly 
included  in  it.  The  meaning  of  the  language 
employed  will  be  fairly  construed,  according  to 

1  Starkie's  Crim.  Plead.,  p.  56.  61. 


OF    THE    CHARGES.  29E 

the  ordinary  and  usual  acceptation  of  the  words     CHAPTER 
employed,  and  technical  terms  according  to  their        XIV> 
technical  meaning ;  and  if  ambiguous  words  be 
used,  the  sense  of  the  same  shall  be  interpreted 
in  accordance  with  the  context  and  subject  mat- 
ter, so  that  the  whole  shall  be  consistent  and 
sensible. 

The  importance  of  using  technical  terms  in  utaity  of  tech- 

A  °  nical  terms. 

law  proceedings,  is  derived  from  the  fixed  value 
and  weight  of  such  terms,  that  successive  de- 
cisions have  determined.  If  doubt  should  arise 
as  to  their  meaning,  reference  may  be  had  to 
authorities  for  the  meaning,  whilst  every  new 
expression  would  introduce  fresh  uncertainty, 
and  the  benefits  to  be  derived  from  precedents 
be  wholly  lost.  But  few  terms  of  art,  compara- 
tively, are  necessary  to  describe  offences,  in  mil- 
itary charges,  and,  therefore,  there  ought  not  to 
be  any  difficulty  in  setting  forth  such  offences 
with  clearness  and  precision. 

The  intention  of  the  party,  at  the  time  he  intention  at  the 

A          •'  .          time  of  commit- 

committed  the  offence,  is  often  a  necessary  in-  ting  the  offence. 
gredient  of  it ;  and,  therefore,  as  necessary  to  be 
stated  in  the  charge  as  any  other  facts  or  cir- 
cumstances which  constitute  the  offence.  This 
feature  of  the  accusation,  has  been  very  fre- 
quently disregarded  in  the  statement  of  military 
charges.  Most  generally  the  bare  commission 
of  the  act  has  been  declared,  leaving  the  crimi- 
nality of  it  to  be  decided  by  the  court,  as  an  in- 
ference of  intention,  by  the  evidence  adduced.  It 
is  preferable,,  however,  that  the  intention,  when 
necessary  to  make  the  acts  alleged  amount  to  a 
crime,  should  be  averred ;  and  this  the  more 
particularly,  because  it  involves  no  specialties 


296  OP    THE    CHARGES. 

CHAPTER     which  might  confuse,  but  rather  aids  the  court 
in  the  understanding  of  the  matter  submitted  for 


investigation, 
where  the  law       in  some  cases  the  law  has  adopted  certain 

has  adopted  cer- 
tain expressions  expressions  to  show  the  intention  with  which 

to  express  the  * 

intention.  an  offence  is  committed ;  and  in  such  cases  the 
intention  must  be  expressed  by  the  technical 
word  prescribed,  and  no  other: — thus,  for  in- 
stance, the  fifteenth  (15th)  article  of  war  says, 
"Every  officer  who  shall  knowingly  make  a 
«  false  muster  of  man  or  horse ;  and  every  officer 

or  commissary  of  musters  who  shall  willingly 
sign,  direct,  or  allow  the  signing,  &c.,  &c.,  shall, 
&c.,  be  cashiered."  Thus,  a  charge  exhibited 
against  an  officer  for  making  a  false  muster, 
must  be  laid  to  have  been  done  "knowingly;" 
and  for  signing  a  false  muster  roll,  to  have  been 
done  "willingly."  The  words  "mutiny"  and 
"sedition"  are  technical  terms,  purely,  when 
applied  to  military  offences,  and  can  only  be 
used  and  understood  according  to  the  fixed  ac- 
ceptation of  them,  determined  by  legal  prece- 
dents, and  the  custom  of  war. 

Higher  or  great-       There  are  some  acts  to  which  the  law  affixes 

er  criminality  . 

of  certain  acts   a  higher  degree  of  punishment,  when  committed 

under  particu-  &  .°  .r 

lar  circumstan-  under  particular  circumstances.  In  all  such  ca- 
ses, in  order  to  bring  the  offender  within  that 
higher  degree  of  punishment,  it  must  be  ex- 
pressly charged  to  have  been  committed  under 
those  circumstances,  and  the  circumstances  must 
be  stated  with  certainty  and  precision.  The  9th 
article  of  war  provides,  that  "  any  officer  or  sol- 
dier who  shall  strike  his  superior  officer,  or  draw 
or  lift  up  any  weapon,  or  offer  any  violence 
against  him,  being  in  the  execution  of  his  office, 


OF    THE    CHARGES. 


on  any  pretence  whatsoever,  or  shall  disobey  any     CHAPTER 
lawful  command  of  his  superior  officer,  shall  suf-        *IV> 
fer  death,  &c.  &c. ;"  therefore,  it  is  necessary  to 
state  under  this  article,  that  the  officer  against 
whom  violence  was  offered,  was  "  in  the  execu- 
tion of  his  office"    As  to  the  crime  of  disobe- 

tf  tJU 

dience  of  orders,  where  the  command  is  not 
manifestly  in  opposition  to  law,  it  is  always  pre- 
sumed to  be  lawful  until  shown  to  the  contrary : 
and  this,  as  the  offence  is  one  of  an  aggravated 
nature,  and  tending  to  the  greatest  evil,  and  fear-  , 

ful  consequences  in  military  affairs.  He  who 
takes  or  assumes  the  risk  of  disobedience,  must 
also  bear  the  onus  of  the  proof  of  justification. 
In  a  charge,  accusing  a  commissioned  officer,  or 
soldier,  with  drunkenness,  under  the  45th  article 
of  war,  it  must  be  expressly  laid  as  being  drunk 
on  duty,  and  the  particular  duty  be  also  distinct- 
ly set  forth. 

There  is  also  another  point  to  be  observed,  offences  crea- 
There  are  certain  offences  created  by  statute,  and  a/fined 
and  defined  therein :  and  the  offence  consists  of 
the  commission  or  omission  of  certain  acts,  un- 
der certain  circumstances,  and  in  some  cases 
with  a  particular  intent.  Now  a  charge  under 
such  a  law,  must  clearly  declare  the  accused  to 
have  committed  or  omitted  the  acts,  under  the 
circumstances,  and  with  the  intention  mentioned 
in  the  statute :  and  if  any  of  these  ingredients 
in  the  offence  be  wanting,  the  charge  will  be  in- 
sufficient. Thus,  by  the  52d  article  of  war, 
"  any  officer  or  soldier,  &c. — or  who  shall  quit 
his  post  or  colors,  to  plunder  and  pillage,  every 
such  offender,  being  duly  convicted  thereof,  shall 

suffer  death,  or  such  other  punishment  as  shall 

38 


298 


OP    THE    CHARGES. 


CHAPTER 
XIV. 


The  words  of 
the  statute  to 
be  followed. 


Not  necessary 
to  cite  an  act  as 
a  breach  of  a 
particular  arti- 
cle of  war. 


Must  not  be 
double.    Each 
specification 
sets  forth  but 
one  offence. 


be  ordered  by  the  sentence  of  a  general  court- 
martial."  Here  the  law  defines  an  act  as  a  crime 
when  done  with  a  particular  intention,  and  there- 
fore it  is  necessary  in  framing  a  charge  under 
this  article,  to  declare  the  intention  of  the  act, 
by  inserting  the  words  "  to  plunder  and  pillage" 

It  is,  however,  said,  that  "  where  a  word,  not 
in  the  statute,  is  substituted  in  the  indictment 
for  one  that  is,  and  the  word  thus  substituted  is 
equivalent  to  the  word  used  in  the  statute,  or  is 
of  more  extensive  signification  than  it,  and  in- 
cludes it,  the  indictment  will  be  sufficient."1  But 
it  is,  at  the  same  time,  held  to  be  much  safer  to 
pursue  the  words  of  the  statute  strictly,  as  there- 
by precluding  all  doubts  as  to  the  meaning  of 
the  words  used ;  and  particularly  where  the  of- 
fence is  capital, — as  courts,  in  favorem  vitce,  are 
sometimes  willing  to  entertain  very  nice  distinc- 
tions upon  the  subject. 

It  is  not  necessary,  nor  is  it  desirable,  to  spe- 
cify that  the  offence  alleged  has  been  committed 
in  breach  of  a  particular  article  of  war.  In 
cases  where  the  offence  comes  directly  within  a 
particular  enactment,  it  should  be  set  forth  in  the 
terms  used  therein ;  but  where  the  alleged  of- 
fence is  a  disorder  or  neglect,  not  specifically  pro- 
vided for,  it  must  be  charged  as  "  conduct  to  the 
prejudice  of  good  order  and  military  discipline." 
— (See  99th  article  of  war.) 

6.  It  must  not  be  double. — That  is,  the  defend- 
ant must  not  be  charged  with  having  committed 
two  or  more  offences  in  any  one  count,  or  speci- 
fication of  the  charge.  Each  specification  can 
set  forth  but  one  offence.  The  accusation  should 

1  Archbold's  Grim.  Plead.,  p.  47. 


OP   THE    CHARGES.  299 

be  written  out  in  words  at  length,  without  ab-     CHAPTER 
breviations ;  and  the  charge  be  sufficiently  ex-        XIV* 
plicit  to  support  itself ;  for  no  latitude  of  inten- 
tion can  be  allowed  to  include  any  thing  more 
than  is  expressed.1 

Military  charges  should  be  set  out  as  briefly  charges  to  be 
as  is  possible,  consistent  with  the  requisites 
pointed  out  in  the  foregoing  remarks.  It  is, 
therefore,  to  be  observed,  that  allegations  which 
are  not  essential  to  constitute  the  offence,  and 
which  may  be  omitted  without  affecting  the 
charge,  ought  to  be  rejected  as  surplusage  :  and 
that  in  every  charge  or  declaration,  there  should 
be  contained,  according  to  the  opinion  of  a  great 
lawyer,  these  two  things — certainty  and  verity? 

In  concluding  this  chapter  it  is  proper  to  ob- 
serve,  that  it  is  a  principle  by  which  the  power 
and  jurisdiction  of  courts-martial  are  restrained,  C2?  *°  ,!uch .?" 

«*  '    affect  the  mill- 

that  they  cannot  take  cognizance  of  any  acts  or  tory state- 

offences  which  are  not  conceded  by  statute  or 
the  custom  of  war,  as  specific  crimes  against 
the  military  state,  or  as  disorders  and  neglects 
tending  to  the  prejudice  of  discipline  and  good 
order. 

1  Chitty's  Grim.  Law,  Vol.  I.,  p.  172. 
»  Coke's  1  Inst.,  Book  III.,  p.  361. 


CHAPTER  XV. 


OP  THE  JUDGE  ADVOCATE. 

CHAPTER         To  those  who  have  ever  had  any  practical  ac- 
xv-        quaintance  with  the  duties  of  the  judge  advocate, 


Preliminary  re-  it  must  be  evident  that  a  full  enumeration  and 

marks  upon  the 

office  of  judgo  descripton  of  them  would  compose  a  very  com- 

advocate  A  * 

prehensive  chapter.  It  certainly  cannot  be  ex- 
pected that  in  this  work,  a  minute  and  precise 
+•  statement  of  all  that  pertains  to  that  situation, 
will  be  embodied ;  nor  is  it  the  intention  of  the 
writer  to  present  to  the  reader  more  than  a  few 
of  the  prominent  principles  of  action  by  which 
that  officer  should  be  guided;  together  with 
some  general  observations  connected  therewith. 
It  is  indeed  an  extraordinary  fact,  that  in  all 
the  legislation  touching  the  administration  of 
justice  by  military  courts,  there  cannot  be  found 
but  a  few  brief  lines,  which  make  any  reference 
to,  or  state  any  regulations  for,  the  conduct  of 
the  judge  advocate.  The  mere  provision  for  his 
appointment  and  compensation,  makes  up,  al- 
most entirely,  the  sum  total  of  the  notice  given 
to  him,  and  without  any  specific  exposition  of 
his  character,  or  rules  to  determine  the  true 
sphere  of  his  occupation,  his  rights,  his  duties, 
or  his  responsibilities ! 

It  follows  then,  necessarily,  that  the  regula- 
tions and  principles  for  his  guidance  have  been 
established,  and  as  they  now  exist,  by  custom ; 


OF    THE    JUDGE    ADVOCATE.  301 

and  thence  the  difficulty  which  has  often  been  CHAPTER 
experienced,  when  questions,  calling  for  judicious  xv> ' 
settlement,  have  been  agitated,  as  to  what  was 
the  authority  of  a  court-martial  on  one  side,  and 
what  was  the  duty,  or  right  of  the  judge  advo- 
cate on  the  other.  If  rules  are  to  be  sought  for, 
which  can  only  find  a  sanction  in  custom,  or  for- 
mer precedents,  it  is  readily  perceived,  that  con- 
siderable previous  knowledge  is  requisite  on  the 
part  of  the  officiating  judge  advocate,  to  enable 
him  to  discuss  such  questions,  or  to  point  out 
'the  true  rule  or  principle  to  be  observed  either 
for  his  own  guidance  or  that  of  the  court ;  and 
yet  this  consideration  was  not,  and  is  not,  always 
entertained,  when  the  necessity  arises  for  the 
appointment  of  some  person  as  judge  advocate, 
to  conduct  a  military  prosecution. 

There  can  be,  when  applied  to  the  army  of  Cause  of  erro™. 
the  United  States,  no  doubt  of  the  correctness 
of  the  observations  in  the  preceding  paragraph  ; 
and  it  is  to  such  facts,  that  we  may  refer,  almost 
exclusively,  for  the  causes  and  explanations  of 
the  great  irregularities,  and  numerous  and  con- 
stantly recurring  errors,  which  have  character- 
ized the  proceedings  of  courts-martial.  It  was 
indeed,  enacted  by  the  act  of  congress,  "fixing 
the  military  peace  establishment  of  the  United 
States,"  of  March  16,  1802,  "  that  whenever  a 
general  court-martial  shall  be  ordered,  the  presi-  what 
dent  of  the  United  States  may  appoint  some  fit 
person  to  act  as  judge  advocate ;"  but  in  what 
thai  fitness  was  to  consist,  has  ne.ver  yet  been  of- 
ficially determined  or  published.  Now,  it  is  gen- 
erally conceded,  that  for  a  proper  discharge  of 
this  office,  there  is  needed  qualifications  and  at- 


302  OP   THE   JUDGE    ADVOCATE. 

CHAPTER  tainments  of  more  than  ordinary  possession; 
*v>  that,  as  the  duties  are  multifarious,  and  highly 
important,  and  therefore  responsible,  there  should 
be  a  corresponding  ability ;  a  Jitness,  in  a  word, 
which  can  only  be  derived  from  experience,  and 
knowledge  of  military  life ;  its  laws,  customs, 
and  modes  of  discipline ;  together  with  a  com- 
petent acquaintance  with  the  principles  and  max- 
ims of  criminal  jurisprudence,  and  by  which  the 
proceedings  in  the  ordinary  law  courts  of  the 
country  are  regulated.  The  particular  rules  for 
the  government  of  military  judicial  proceedings, 
cannot  be  found  in  the  laws  alone ;  they  must 
be  sought  for  in  the  history  of  cases,  or  gathered 
from  the  compilations  and  treatises  of  military 
authors :  for  the  experience  of  the  most  practiced 
individual,  is  not  large  enough  to  embrace  all 
the  accidents  and  contingencies  of  circumstance, 
which  give  diversity  to  the  subject. 

"  Without  (says  a  military  writer,1)  an  ade- 
quate degree  of  knowledge  in  all  of  the  above 
mentioned  points,  it  is  impossible  for  a  judge  ad- 
vocate to  direct  and  guide  the  members  of  a 
court-martial  in  the  right  path,  so  that  justice  be 
duly  administered,  the  proceedings  of  trials  cor- 
rectly and  legally  conducted,  and  the  members 
of  the  court  protected  from  the  penalties  every 
member  is  liable  to,  should  the  court  (from  not 
having  a  competent  legal  adviser,  through  igno- 
rance, or  inadvertency}  exceed  its  authority  in  de- 
viating from  the  established  law  of  the  land." 

It  is  then,  evidently  a  necessity,  from  all  these 
considerations,  that  for  the  furtherance  of  justice 
for  all  parties,  the  judge  advocate,  whoever  he 

'  Captain  Hughes,  Duty  of  Judge  Advocates,  p.  9. 


OP   THE   JUDGE    ADVOCATE.  303 

may  be,  should,  in  every  respect,  be  a  qualified     CHAPTER 

YV 

person. 


Perhaps  no  military  institutions  ever  existed  Defects  in  the 

•;  .    .  laws  for  the  ad- 

in  any  country,  in  which  the  administration  of  ministration  of 

J  •     i  military  justice. 

justice  was  so  little  cared  for  by  the  government, 
as  in  those  of  the  United  States.  It  is  not  meant 
by  this  however,  that  the  rights  of  persons  are 
disregarded,  but  that  the  necessary  and  proper 
means  for  the  due  observance  of  legal  rules  in 
judicial  proceedings,  have  been  entirely  disre- 
garded by  the  national  legislature.  We  might 
point  to  the  manifest  deficiencies  which  now 
exist  in  the  laws  authorizing  trials  by  courts- 
martial,  whereby  such  courts  are  left  without 
the  power  of  self-protection,  and  the  want  of  a 
compulsory  process,  (through  the  ordinary  courts 
of  law,)  to  control  witnesses,  or  obtain  evidence. 
Does  it  not  appear  as  a  most  anomalous  and  dan- 
gerous fact,  that  in  trials  where  the  highest  in- 
terests of  the  government  are  at  stake,  or  where 
the  reputation  or  even  life  of  the  prisoner  is  in 
jeopardy,  that  these  tribunals  of  justice,  as  they 
are  frequently  called,  should  be  too  feeble  to 
punish  contempts,  and  too  inanimate,  legally  con- 
sidered, to  enforce  testimony ! 

From  this  very  condition  of  things,  may  it  be 
argued,  that  an  able  and  competent  judge  advo- 
cate is  an  indispensable  ingredient  for  the  safety 
of  military  courts.  If  the  knowledge  of  one's 
strength  is  an  element  of  safety,  or  means  of  self- 
defence  ;  so  peculiarly  in  military  matters,  is  the 
knowledge  of  one's  weakness,  an  imperative 
want,  to  compass  the  like  end.  The  defects  of 
the  military  laws  in  these  particulars,  have  at 
various  times  been  brought  to  the  notice  of  the 


304  OP   THE    JUDGE    ADVOCATE. 

CHAPTER  proper  department  of  service,  in  hopes  that  a  re- 
*Y>  medy  might  be  found ;  but  still,  no  attention  has 
been  given  to  the  subject.  As  recently  as  the 
year  1839,  did  the  members  of  a  general  court- 
martial,  assembled  at  St.  Louis,  Mo.,  for  the 
trial  of  Lieutenant  Colonel  Brant,  of  the  quarter- 
master's department,  bring  the  subject  immedi- 
ately to  the  view  of  the  secretary  of  war,  by  a 
written  statement  of  the  difficulties  under  which 
they  had  labored,  in  reference  to  the  direct  refu- 
sal of  a  non-military  witness  to  appear  before 
the  court  and  testify.  And  such  cases  are  liable 
to  be  presented  to  every  military  court  that  may 
inequality  of  assemble.  While  the  military  man  is  subject  to 

the  operation  ,       ,  .       .       .     ,.      .  .  .,  ... 

of  the  laws  up-  a  double  jurisdiction  and  responsibility,  in  mat- 
and  the  non-"7  ters  which  affect  the  interests  or  rights  of  a 
civilian,  the  latter  may  frequently  avoid  all  ac- 
countability for  misconduct   towards  the  first, 
which  involves  in  it  the  professional  reputation 
of  the  sufferer. 
•ud%  *ivoca*"       "  Persons  who  are  appointed  to  act  as  judge 

should  be  a  sol-  rr  JO 

dier  as  well  as  advocates,  may  be  considered  fit  from  possessing 

a  lawyer.  •* 

superior  attainments  and  abilities,  either  as  law- 
yers or  soldiers ;  but  the  qualifications  of  both 
professions  are  requisite  for  this  specific  duty."1 
Union  of  such        Now  the  union  of  the  qualifications  of  both 

qualifications 

essential.  these  professions  is  essential,  not  only  because  it 
is  of  importance  to  have  sensible  and  well  settled 
rules  of  procedure,  even  under  the  ordinary  con- 
dition of  things — but  likewise  that  dangers  and 
embarrassments  may  be  guarded  against,  during 
emergencies  of  martial  government  when  the 
courts  of  civil  judicature  are  closed  and  silent. 
Such  contingencies  may  arise  when  an  army  is 

1  Hughes,  Duty  of  Judge  Advocates,  p.  178. 


OP   THE   JUDGE    ADVOCATE.  305 

serving  in  a  foreign  territory,  or  whtn  the  law     CHAPTER 
military  is  the  predominant  power.     The  pro-        xv* 
clamation  of  martial  law  (if  ever  constitution-  jJ5£j2tk^J-; 
ally  lawful)  would  be  in  itself  sufficiently  arbi-  ^eg°r  the  8er" 
trarv,  without  subjecting  suitors  or  prisoners  to 
the  additional  grievance  of  arbitrary  and  capri- 
cious rules  in  law  proceedings,  and  the  utility 
therefore  of  courts-martial  having  a  fixed  and 
consistent  code  of  regulations  for  their  guidance 
is  obviously  certain. — How  can  such  a  code  be 
established  1 

The  answer  to  the  above  interrogatory  is  very 
easy.  By  the  creation  of  a  military  law  depart- 
ment, at  whose  head  shall  be  a  military  person 
of  competent  attainments  and  experience ;  not 
selected  for  political  associations,  but  on  the 
contrary  freed  from  all  political  duties,  and  who 
shall  be,  therefore,  entirely  unfettered  by  politi- 
cal interests  or  motives.  To  such  an  officer,  as  or  the  office  of 

,  i  •,  j     ,  judge  advocate 

the    JUDGE   ADVOCATE    GENERAL,    WOUld    be    COn-    general. 

fided  the  law  proceedings  of  the  army.  Through 
him  would  the  members  of  courts-martial  re- 
ceive the  assistance,  advice,  and  instruction, 
which  they  so  frequently  need ;  and  by  his  care- 
ful supervision  of  all  court-martial  proceedings 
would  erroneous  principles  and  false  practice  be 
rejected,  and  legal  views  and  uniform  rules  be 
confirmed.  In  connection  too  with  the  duties 
and  labors  of  this  officer,  would  it  be  particularly 
necessary,  that  all  generals  and  colonels,  having 
the  authority  to  appoint  courts-martial,  should 
consider  with  somewhat  more  interest,  than 
what  heretofore  has  been  the  practice,  the  qual- 
ifications of  persons  which  ought  to  constitute 
the  fitness  for  the  appointment  of  judge  advo- 

39 


306  OF   THE    JUDGE    ADVOCATE. 

CHAPTER     cates,  for  without  such  attention,  the  good  results 
*  xv>        of  the  system  proposed,  might  be  very  materi- 


ally lessened  or  hindered. 
Necessity  of  se-       But  without  looking  to  any  change  in  the  or- 

lecting  proper  9 

persons  to  act  as  ganization  of  the  law  department  of  the  army, 
cates.  (if  change  it  can  be  called,  in  what  hardly  can 

be  said  to  exist,)  the  writer  would  desire  to  im- 
press upon  the  minds  of  all,  who  have  an  in- 
terest in  the  well-being  of  the  army  and  navy, 
the  great  benefits  to  be  attained,  and  the  mani- 
fest evils  to  be  avoided,  by  the  proper  selection 
of  persons  to  officiate  as  judge  advocates — of  the 
person  who  is  the  legal  adviser  of  the  court,  and 
who  has  been  called  by  a  writer  "  the  PRIMUM 
MOBILE  of  a  court-martial ;"  and  who  is  appoint- 
ed, as  the  court-martial  is  convened,  for  the  same 
object — the  attainment  of  justice.1 

Requirement  of  Although  the  general  regulations  for  the  army 
uktfonTforThe  require  all  officers  to  make  themselves  acquaint- 
ed with  the  laws  and  the  practice  of  courts- 
martial,2  still  it  is  an  impossibility  that  courts- 
martial  should  be  always  so  composed,  that  each 
individual  member  is  perfectly  fitted  for  the  du- 
ties which  he  is  called  upon  to  perform.  This 
arises  from  the  diversified  conditions  of  military 
life ;  the  youth  or  rank  of  the  person  appointed 
a  member,  or  from  other  relations  which  he 
bears  to  the  service,  or  to  the  party  accused. 
Neither  would  it  be  possible  for  the  appointing 
power  to  select  members  according  to  what  he 
might  deem  the  fitness  of  the  person  chosen,  be- 
cause this  would  be  contrary  to  the  principle  of 
detail ;  might  impose  unequal  burthens  of  duty 
upon  different  individuals ;  and  moreover,  be  ob- 

1  Simmons,  p.  152.  *  Par.  221. 


OF    THE    JUDGE    ADVOCATE.  307 

noxious  to  the  imputation  'of  packing  a  jury.     CHAPTER 
But  all  these  difficulties  may  be  in  a  great  degree        xv' 
obviated  by  the   selection  of  a  judicious   and 
competent  judge  advocate ;  and  from  no  view  of 
the  subject,  than  the  one  just  presented,  does  the 
propriety  of  such  a  means  more  clearly  and  em- 
phatically stand  revealed. 

The  above  general  observations,  in  which  the  Direct  subject 
writer  has  indulged,  are  such  as  he  thinks  would 
present  themselves  to  any  mind  which  had  been 
engaged  for  any  time  with  the  subject  under 
consideration ;  and  it  is  because  they  are  the 
most  easy  and  natural  to  arise,  that  he  deems 
them  the  more  important  and  the  most  likely  to 
be  useful.  Remarks  upon  this  branch  of  the 
subject  might  be  extended  through  many  pages, 
and  to  the  general  reader,  or  the  non-military 
student  would  be  novel,  and  to  some  degree, 
useful ;  but  as  the  great  class  into  whose  hands 
this  work  may  be  found  are  likely  to  be  of  the 
military  profession,  seeking  for  particular  infor- 
mation to  guide  them  in  their  practical  duties, 
such  prolonged  remarks,  however  satisfactorily 
received,  would  hardly  be  necessary  or  useful, — 
he  therefore  resumes  the  consideration  of  partic- 
ulars more  directly  applicable  to  the  subject  of 
the  present  chapter. 

The  power  to  appoint  a  judge  advocate,  or  power  to  ap- 
some  person  to  officiate  as  such,  whenever  a  £5te!udge  ad 
general  court-martial  is  assembled,  is  conveyed 
by  the  twenty-first  (21st)  section  of  the  act  of 
congress  of  March  16,  1802 ;  and  by  the  sixty- 
ninth  (69th)  article  of  the  act  of  congress  of 
<Vpril  10, 1806.1    The  broad  interpretation  given 

1  Cross'  Mil.  Laws,  pp.  104—117. 


308 


OP    THE    JUDGE    ADVOCATE. 


CHAPTER 
XV. 


Duty  of  judge 
idvocates. 


to  all  legislation  touching  this  authority  is,  that 
he  who  has  the  power  to  appoint  general  courts- 
martial  has,  incidentally  as  well  as  directly  by 
statute,  the  power  also  of  appointing  some  fit 
person  to  act  as  judge  advocate. 

In  previous  chapters  (6th  and  7th)  there 
were  some  rules  indicated  for  the  guidance  of 
the  judge  advocate  which  naturally  presented 
themselves  when  describing  the  progress  of  the 
trial.  It  will  not  be  necessary  to  repeat  those 
rules  here,  unless  it  be  in  connection  with  some 
principle  therein  alluded  to,  and  which  may 
here  require  greater  amplification. 

The  duties  of  this  officer  are  but  very  briefly 
alluded  to  in  any  part  of  the  laws  enacted  for 
the  government  of  the  military  state.  The 
sixty-ninth  (69th)  article  of  war  says,  that  he 
"shall  prosecute  in  the  name  of  the  United 
States,  but  shall  so  far  consider  himself  as  coun- 
sel for  the  prisoner,  after  the  said  prisoner  shall 
have  made  his  plea,  as  to  object  to  any  leading 
question  to  any  of  the  witnesses,  or  any  question 
to  the  prisoner,  the  answer  to  which  might  tend 
to  criminate  himself;  and  administer  to  each 
member  of  the  court,  before  they  proceed  upon 
any  trial,  the  following  oath,  which  shall  also  be 
taken  by  all  members  of  the  regimental  and  gar- 
rison courts-martial." 

In  considering  the  question  of  to  what  extent 
the  judge  advocate  may  lend  his  assistance  to 
the  prisoner,  or  the  latter  require  the  aid  of  the 
judge  advocate,  it  is  proper  to  remember,  that  in 
trials  before  courts-martial,  according  to  the  prac- 
tice of  British  courts-martial,  the  judge  advocate 
does  not  always  occupy  the  position  of  prosecu- 


OF    THE    JUDGE    ADVOCATE.  309 

tor :  it  is  necessary  to  observe  this,  so  that  the     CHAPTER 
titles  of  such  persons,  and  their  respective  duties,         xv' 
he  not  confounded, — as  they  are  not  convertible. 

It  was,  for  a  long  period,  a  prevalent  notion  HOW  to  assist 
that  it  was  the  official  duty  of  the  judge  advo- 
cate to  assist  the  prisoner  in  his  defence.  A 
little  consideration  will  show,  especially  where 
he  is  the  prosecutor,  that  such  cannot  be  the 
case.  To  do  so  effectually  would  require  a 
knowledge  of  the  prisoner's  means  or  points  of 
defence,  which  would  thus  bring  him  in  opposi- 
tion to  his  own  obligations  and  duty ;  but  he 
might,  and  would  most  probably,  if  requested  by 
the  prisoner,  give  him  all  the  assistance  in  his 
power.  In  court,  the  judge  advocate  could  not 
aid  the  prisoner, — as  he  could  not  advise  him, 
nor  prepare  questions  for  him ;  nor  cross-exam- 
ine the  prosecutor's  witnesses ; — but  out  of  court 
there  would  be  no  objection  to  his  pointing  out 
to  the  prisoner  the  way  in  which  he  might  best 
conduct  his  defence.  It  is  very  evident,  we  object  of  the 
think,  that  the  provision  of  the  sixty-ninth  ar- 
tide,  above  quoted,  was  specially  intended  for 
the  benefit  of  enlisted  soldiers,  whose  ignorance 
makes  the  counsel  of  the  judge  advocate  much 
more  necessary  than  in  other  cases,  and  to 
whom  it  most  forcibly  applies.  It  would,  con- 
sequently, be  incumbent  on  the  judge  advocate, 
not  only  to  see  that  no  improper  advantage  be 
taken  of  the  prisoner,  by  the  admission  of  illegal 
testimony,  but  that  he  direct  him  how  to  present 
the  facts  upon  which  his  defence  may  hinge,  in 
the  most  effective  light  to  the  court.  A  prisoner 
may  give  a  memorandum  of  the  points  on  which 
he  wishes  his  own  witnesses  examined,  and  the 


310 


OP   THE    JUDGE    ADVOCATE. 


CHAPTER 
XV. 


Speaking  with 
prisoner  before 
trial. 


Summons  wit- 
nesses. 


opposite  party  cross-examined,  to  the  judge  ad- 
vocate, and  request  him  to  put  the  questions  in 
his  own  words.  In  general  terms  it  may  be  re- 
marked, that  it  is  the  duty  of  the  judge  advocate 
to  shape  questions  in  legal  form;  to  solve  all 
difficulties  as  to  the  relevancy  of  facts  adduced 
by  either  of  the  parties ;  to  see  that  the  prisoner 
shall  not  suffer  from  a  want  of  knowledge  of  the 
law,  or  from  deficiency  of  experience  or  ability 
to  elicit  from  witnesses  a  full  statement  of  the 
facts  bearing  on  his  case ;  and  to  this  extent 
both  the  court  and  the  judge  advocate  are  bound 
to  give  their  advice  to  the  prisoner.  He  should 
also  give  him  reasonable  aid  in  his  defence 
either  in  point  of  law,  or  of  justice ;  and  where 
doubtful  questions  arise,  rather  incline  to  the 
side  of  the  prisoner, — and,  above  all,  not  omit 
any  circumstances  of  the  proceedings  which 
might  have  a  tendency  to  palliate  the  charges 
against  the  accused.  As  to  the  propriety  of 
speaking  with  the  prisoner  before  trial,  Major 
Hough  says,  that  he  "  conceives  great  good  may 
often  result,  particularly  in  the  case  of  a  private 
soldier, — the  judge  advocate  is  more  free  from 
bias,  it  may  be  supposed,  than  any  other  person." 
As  to  the  propriety  of  this  latter  course  there  are 
various  opinions,  but  the  writer  is  inclined  to 
believe  that  when  followed  by  a  judicious  and 
impartial  person,  as  the  judge  advocate  is  al- 
ways presumed  to  be,  great  benefits  to  the  ac- 
cused party  may  result  therefrom. 

The  charges  upon  which  a  prisoner  is  to  be 
tried  having  been  placed  in  the  hands  of  the  judge 
advocate,  he  is  to  ascertain  what  witnesses  01 
evidence  will  be  necessary,  both  for  the  prosecu- 


OP    THE    JUDGE    ADVOCATE.  311 

tion  and  defence,  and  thereupon,  summon  every     CHAPTER 
person  whose  testimony  may  be  required.    This        XV| 
duty  should  be  performed  at  the  earliest  period 
possible,  to  avoid  any  delay  in  the  proceedings. 

In  cases  where  the  judge  advocate  has  the  Ascertains  whe 

have  knowl- 

task  delegated  to  him  of  arranging  a  prosecution  edge  of  the 

facts  in  issue, 

on  particular  grounds  designated  by  superior  au-  prepares  a  plan. 
thority,  it  is  his  business  to  inquire  what  persons 
have  knowledge  of  the  facts  in  issue,  and  all 
the  particulars  relating  thereto,  so  that  the  court 
when  assembled  for  the  trial  may  not  be  need- 
lessly delayed.  In  all  cases  it  will  prove  of 
great  assistance  to  himself,  if  he  should  prepare 
in  writing,  a  short  analysis  or  plan  for  conduct- 
ing the  trial  and  the  examination  of  the  wit- 
nesses. 

He  is  to  furnish  the  accused  party  with  a  copy  Furnishes  pris- 

-     ,          ,  .,  ,  \        oner  with  copy 

ol  the  charges,  as  soon  as  possible,  or  ascertain  of  charges,  hsi 
if  such  has  been  transmitted  to  him  from  an-  necessary. 
other  source  ;  and  should  a  change  or  alteration 
be  made  in  the  charges,  the  prisoner  should  be 
immediately  apprized  of  it.  The  judge  advo- 
cate is  not  strictly  obliged  to  furnish  the  prisoner 
with  a  list  of  witnesses  for  the  prosecution — 
though  it  is  usually  done  ;  there  seems  no  objec- 
tion of  a  general  nature  to  exist  against  this  cus- 
tom— should  there  be  any  in  particular  cases, 
the  judge  advocate  might  refuse  it,  and  to  him 
therefore  the  decision  of  how  to  act  is  left. 

The  law  has  not  provided  any  specific  form 
of  summons  for  witnesses,  but  in  whatever  man- 
ner it  may  be  composed,  its  language  should  be 
at  once  courteous  and  specific. 

"  A  judge  advocate  is  the  main-spring  of  a 
court-martial,  on  him  the  court  depends  for  in- 


312  OF    THE    JUDGE    ADVOCATE. 

CHAPTER     formation  concerning  the  LEGALITY  as  well  as 
xv'        the  REGULARITY   of  their  proceedings.      IF  HE 
ERRS,  all  may  go  wrong."1     From  this  it  follows 
that  a  duly  appointed  judge  advocate  is  essential 
to  the  jurisdiction  of  a  court  martial ;  and  with- 
out him  it  cannot  proceed.    The  judge  advocate 
appears  before  a  court-martial  in  a  threefold 
capacity : — First,  As  an  officer  of  the  court  for 
the  purpose  of  recording  its  proceedings ;    he 
reads  the  warrants,   administers   the  oath,  ar- 
raigns the  prisoner,  and  puts  questions  to  wit- 
nesses.    Secondly,  As  the  adviser  of  the  court 
in  matters  of  form  and  law — and  Thirdly,  As 
N      public  prosecutor. 
HOW  far  subject       « In  the  first  of  these  characters,  he  is  subject 

to  the  court. 

to  the  court,  who  may  direct  their  proceedings  to 
DC  conducted  and  recorded  in  any  manner  which 
they  think  proper  ;  but  in  the  other  two  charac- 
ters, the  court  can  exercise  no  control  whatever 
over  him,  as  in  the  performance  of  these  duties 
he  must  be  allowed  to  act  according  to  his  own 
judgment  and  discretion."2 
cannot  be  chai-  The  judge  advocate  cannot  be  challenged  on 

lenged;  maybe 

absent  for  a     any  grounds,  as  he  acts  at  a  general  court-mar- 

time  and  resume      .   ",    7       •**•>/,       .     \        TT  i     <~i  i    i 

his  place.  tial  in  behalf  of  the  United  States.  And  he 
may  be  absent  during  a  part  of  the  trial,  (an- 
other filling  his  place  for  the  time,)  and  return 
and  resume  his  duties  without  invalidating  thf 
proceedings. 

Either  of  the         It  is  admitted,  that  either  of  the  parties  has 
nghtlo  the a    the  right  to  the  opinion  of  the  judge  advocate 
opuwnu!'00    *  either  in  or  out  of  court,  on  any  question  of  law 
arising  out  of  the  proceedings.3 

It  is  a  part  of  the  judge  advocate's  duty  to  be 

1  Adye,  p.  100.  2  Kennedy.  *  Simmons. 


OF   THE    JUDGE    ADVOCATE.  313 

careful  that  a  court-martial  does  not  proceed  to     CHAPTER 
trial  without  being  properly  constituted.     This         xv' 
is  clearly  an  important  matter  for  his  attention, 


and  one,  considering  the  general  features  of  his  ly  constituted- 
office,  for  which  he  is  appointed. 

The  question,  offering  to  the  prisoner  the  op-  Question  to  the 

,-,  ,  ,-.  ,,         prisoner  offer- 

tion  of  challenge  must  be   recorded ;    and  the  mg  the  option 
right  of  challenge  belongs  to  the  iudge  advocate  be  recorded6 

,  ,  His  right  to 

also,  and  to  be  exercised  whenever  the  interests  challenge. 
of  the  public  shall  require  it. 

Between  the  adjournment  on  one  day,  and  the  Fair  copy  of 

meeting  on  the  next,  the  iudge  advocate  prepares  be  made  out. 

,  .  J-  l  •    l  ^l        Toberead 

a  fair  copy  of  the  proceedings,  which  upon  the  over, 
reassembling  of  the  court  is  read  over.  The 
court  may  dispense  with  the  reading  if  it  pleases, 
but  it  had  better  be  done.  There  are  important 
advantages  to  be  derived  from  the  observance  of 
such  a  rule.  It  not  only  impresses  more  clearly 
the  evidence  itself  upon  the  mind  of  the  court, 
but  enables  them  while  the  recollection  of  it  is 
fresh,  to  detect  any  errors,  which,  by  inadvert- 
ence, may  have  been  committed  in  the  tran- 
script. 

It  is  the  essential  duty  of  the  judge  advocate  charges  to  be 
to  see  that  the  charges  which  have  been  com- 
mitted  to  him  for  prosecution,  are  presented  to  the 
court  in  a  legal  form,  and  with  such  distinctness 
that  they  shall  correspond  to  the  requirements 
indicated  in  a  preceding  chapter.  When  charges  The  right  of 
are  furnished  to  the  judge  advocate  from  head-  tS?L 
quarters  in  a  specific  form,  there  may  be  some  c 
doubt  as  to  his  right  of  making  any  alteration 
therein,  and  therefore  should  any  defect  be  seen, 
he  had  better  call  the  notice  of  the  proper  au- 
thority to  it,  whenever  time  and  distance  will 

40 


OP    THE    JUDGE    ADVOCATE. 


CHAPTER     permit.    It  is  undoubtedly,  however,  his  duty  tc 
amend  the  legal  defects  of  charges,  before  the 


prisoner  is  called  upon  to  plead  thereto ;  for  this 
seems  to  be  an  essential  part  of  his  business — 
yet  in  so  doing  he  is  to  be  held  strictly  responsi- 
ble that  the  facts  are  not  changed,  nor  the  legal 
responsibilities  of  the  accused  weakened.  There 
is  an  order  embodying  the  above  instructions  for 
the  guidance  of  the  judge  advocates,  still  in  force, 
and  to  such  may  reference  be  had  for  the  exer- 
cise of  the  rights  or  powers  here  alluded  to. 
changes  in  The  changes  which  are  most  frequently  needed 

charges  the  •»••«* 

most  frequently  to  be  made,  are  mostly  confined  to  form  and 

needed. 

phraseology — to  simplify  the  first,  and  prune  the 
redundant  fullness  of  the  other,  comprise  the  or- 
dinary elements  for  notice.  As  has  been  pre- 
viously remarked,  that  the  manner  in  which 
charges  are  drawn  up,  is  a  primary  requisite  for 
the  doing  of  justice  in  general,  and  of  peculiar 
value  in  isolated  cases,  it  would  seem  to  be  a 
necessity  that  the  person  upon  whom  is  devolv- 
ed the  onus  of  the  prosecution,  should  likewise 
be  of  such  fitness  as  to  be  entrusted  with  the  re- 
sponsibility, and  endowed  with  the  discretion 
to  change  or  modify  the  charges,  either  as  legal 
necessity  or  practical  rules  shall  require. 
judge  advocate  It  is  conceded  that  the  judge  advocate  has 

has  the  right  to  .  ° 

reply-  the  right  to  reply  in  any  case,  whether  evidence 

has  been  adduced  by  the  defence  or  not.  By  a 
reply  is  understood  the  right  of  observing  on 
the  evidence  in  general ;  or  by  controverting  any 
new  matter,  which  may  have  been  introduced 
by  the  prisoner  in  his  defence,  by  other  testimo- 
ny. In  the  practice  of  the  British  army,  there 
is  a  distinction  observed  in  regard  to  this  point 


OP    THE    JUDGE    ADVOCATE.  315 

— depending  upon  the  fact  whether  the  prosecu-  CHAPTER 
tion  is  conducted  wholly  by  the  judge  advocate  _  **' 
or  by  a  private  prosecutor — and  in  the  latter 
case  the  court  exercises  a  discretion  in  permit- 
ting a  reply  or  not.  This  difference  in  the  prac- 
tice of  a  foreign  service  has  been  referred  to  in 
this  particular,  and  at  other  places  of  this  work 
to  other  questions,  upon  which  there  seemed  a 
diversity  of  opinion,  because  in  the  references 
which  young  or  inexperienced  members  of  our 
service  may  make  to  British  authorities,  there 
might  otherwise  be  a  misunderstanding  of  the 
principle,  or  a  perplexity  in  applying  it  to  our 
practice. 

New  matter  may  be  considered  as  any  thing  New  matter, 
introduced  into  the  defence  on  which  the  prose- 
cution has  had  no  previous  opportunity  of  ad- 
dressing the  court ;  and  where  a  reply  is  desired 
by  the  judge  advocate,  the  court  will  always 
grant  a  reasonable  time  for  its  preparation. 

A.  rejoinder  is  not  a  matter  of  right,  and  is  Rejoinder  not  a 
never  permitted  by  courts-martial,  unless  evi-  m 
dence  has  been  adduced  on  the  reply. 

It  appears  to  be  a  propriety  imposed  by  legal  Judge  advocate 

,,  ,     .          j    j       'ii       /•  to  be  subject  M 

provision,  as  well  as  being  deducible  from  the  martial  law. 
particular  duties  of  the  office,  that  no  person, 
other  than  one  subject  to  martial  law,  can  ap- 
pear before  a  general  court-martial  as  prosecutor. 
The  twenty-first  section  of  the  act  of  congress 
of  March  16,  1802,1  authorizing  the  president  to 
appoint  some  fit  person  to  act  as  judge  advo- 
cate, whenever  a  general  court-martial  shall  be 
assembled,  manifestly  intended  to  confine  the  se- 
lection of  such  person  to  the  army,  by  fixing 

1  Cross'  Mil.  Laws,  p.  104. 


316  OF   THE   JUDGE   ADVOCATE. 

CHAPTER     his  compensation  at  a  certain  sum  "  in  addition 
to  his  other  pay" — and  so  it  is  directed  by  the 


69th  article  of  war,  that  "  the  judge  advocate, 
or  some  person  deputed  by  him,  or  by  the  general 
or  officer  commanding  the  army,  detachment,  or 
garrison,  shall  prosecute  in  the  name  of  the 
United  States."  Now  by  an  equitable  interpre- 
tation of  this  article,  and  which  is  fairly  made 
by  referring  to  the  twenty-first  section  of  the  act 
of  March  16, 1802 — the  conclusion  is  inevitable, 
that  the  deputy  for  whose  appointment  provision 
is  made  in  the  sixty-ninth  article  of  war,  must 
also  be  a  military  person  subject  to  martial  laic. 
Judge  advocate  The  propriety  of  this  office  being  filled  by  a 

ought  to  be  a  J  "  , 

military  person  military  person,  has  been  adverted  to  in  a  previ- 

on  the  score  of  A 

responsibility     ous  page,  considered  as  a  mere  quality  of  fit- 

and  cbligation.  r  ,°  .    .,. 

ness  ;  but  now  the  consideration  of  responsibility 
and  obligation  is  superadded.  Without  author- 
ity, by  the  medium  of  military  rules,  to  regulate 
the  official  deportment  of  the  judge  advocate,  it 
is  evident  that  such  person  would  be  left  entirely 
to  the  guidance  of  his  own  will,  and  might  there- 
by leave  the  court  without  safety,  and  the  priso- 
ner without  protection ! 

The  interests  of  the  government,  as  well  as 
those  of  the  members  of  the  court  and  the  pris- 
oner, are  involved  in  this  question  of  military 
responsibility  on  the  part  of  the  judge  advocate, 
and  was  no  doubt  a  material  consideration  en- 
tering into  the  views  of  the  legislature,  when  the 
enactments  above  referred  to  were  passe  J.  The 
responsibility  of  the  judge  advocate  to  this  ex- 
tent, seems  to  be  definitely  settled  in  the  British 
army ;  and  an  instance  in  which  a  deputy  judge 
advocate  general  was  held  amenable  to  such 


OP    THE    JUDGE    ADVOCATE.  317 


authority  by  a  commander  in  chief,  of  the  Ma-     CHAPTER 

dras  army,  in  a  general  order  dated  June  10th,  xv' 

1844,  is  cited  by  Captain  Hughes  in  his  work 
on  the  "  Duties  of  Judge  Advocates,"  in  a  note  to 
page  191.  That  author  concludes  with  this  ob- 
servation :  "  Nothing  can  be  more  conclusive 
than  this — that  although  the  duties  of  a  judge 
advocate  are  of  a  civil  nature,  yet  he  is  respon- 
sible to  the  military  authority  who  appoints 
him,  and  consequently  is  amenable  to  military 
law." 

It  is  certain,  however,  under  the  language  of  None  but  the 

,11!  i«ii  judge  advocate 

the  law,1  that  no  other  than  the  judge  advocate,  can  appear  as 

,  ,  ,      ,  prosecutor. 

or  person  deputed  to  perform  such  duty,  can  ap- 
pear as  prosecutor  before  a  court-martial.  There 
has  been,  as  the  writer  is  well  aware  of,  a  dif- 
ferent opinion  entertained  respecting  this  point, 
and  at  times  a  variance  in  the  practice  from  the 
rule  here  stated.  In  the  naval  service,  there  Rule  in  the  na- 
does  not  appear  to  be  the  same  restrictions  im-  val  semce> 
posed,  nor  the  like  qualification  demanded,  as  to 
subjection  to  military  law,  as  there  are  required 
to  be  observed  in  the  selection  of  a  fit  person  to 
act  as  judge  advocate  for  the  courts-martial  of 
the  army  ;2  and  consequently  a  different  princi- 
ple there  applies.  The  right  of  the  government 
to  appoint  a  special  prosecutor,  independent  of 
the  judge  advocate,  to  conduct  the  proceedings 
before  a  military  court-martial,  was  submitted  Decigion  ^ 
for  decision  upon  the  trial  of  General  Wilkin- 
son.3  In  that  case,  it  is  true,  that  the  person 
appointed  was  not  so  styled,  but  appeared,  and 
was  directed  to  appear  as  the  principal  judge 

i  69th  Art.  of  War.  »  Roman's  N.  Laws,  pp.  53.  65.  67. 

'  Wilkinson's  Memoirs. 


318  OP   THE    JUDGE   ADVOCATE. 

I 

CHAPTER  advocate,  although  the  proper  person,  appointed 
xv>  under  the  law  as  the  judge  advocate  for  the 
army,  was  present.  Upon  the  objection  and  ar- 
gument of  the  defendant,  the  court  decided  that 
the  person  thus  appointed  to  conduct  the  prose- 
cution in  addition  to  the  regular  judge  advocate, 
could  not  appear,  and  he  withdrew,  in  conse- 


allow-  quence,  from  the  court.  It  is  a  positive  right  of 
the  prisoner  to  have  counsel,  to  assist  him  in  his 
defence;  and  it  is  also  acknowledged  that  the 
prosecution  may  be  assisted  by  counsel  ;  but  this 
counsel  can  take  no  further  part  in  the  proceed- 
ings, than  by  being  present  and  advising  upon 
such  points  with  the  judge  advocate  as  may  de- 
counseinotad-  mand  his  attention.  Now  it  does  not  follow 

milled  at  the  in-    f  ,  .          ,  ,  ,      .         , 

stance  of  others,  irom  this,  that  a  person  may  be  admitted  as 


counsel,  at  the  instance,  and  in  behalf  of  per- 
sons who  may  have  an  interest  in  the  result  of 
the  trial,  independent  of  the  United  States,  in 
whose  name  the  prosecution  is  urged  ;  because, 
if  this  were  allowed,  it  would  be  mingling  pri- 
vate animosities,  or  personal  resentments,  with 
instance  quoted  the  stream  of  public  justice.  The  most  striking 

from  the  trial  of  J  J 

Commander      exemplification  of  this  principle,  and  by  which 

Mackenzie,  U.  r  r      '  J      .    . 

s.  Navy.  the  rule  has  been  clearly  denned,  was  exhibited 
upon  the  trial  of  Commander  Alexander  Slidell 
Mackenzie,  of  the  U.  S.  Navy,  in  February, 
1843,  who  was  charged  with  murder  on  board  a 
United  States  vessel  on  the  high  seas.  Upon  the 
third  day  of  the  meeting  of  the  court,  the  judge 
advocate  presented  a  paper  signed  by  two  emi- 
nently distinguished  legal  gentlemen,  stating, 
"  that  they  had  been  employed  by  the  relatives 
of  Midshipman  Philip  Spencer,  one  of  the  per- 
sons for  the  murder  of  whom  Commander  Mac- 


OF   THE    JUDGE    ADVOCATE.  319 


kenzie  was  then  upon  trial, — to  attend  the  trial  CHAPTER 
and  take  part  therein,  by  examining  and  cross-  xv' 
examining  the  witnesses  who  might  be  produ- 
ced, and  propounding  such  questions,  and  offer- 
ing such  suggestions  in  relation  to  the  proceed- 
ings, and  presenting  such  comments  on  the  tes- 
timony, when  the  same  should  be  concluded, 
(under  the  approbation  of  the  court,)  as  they 
might  deem  necessary."  The  court  took  the 
subject  thus  presented  for  their  notice,  into  the 
gravest  consideration ;  and  having  maturely  de- 
liberated thereon,  decided,  that  the  application 
could  not  be  granted.1 

The  views,  thus  expressed  in  the  decision  of  Reasons  -or  the 
the  court,  were  certainly  correct.  It  is  seen 
that  "the  persons  in  whose  behalf  the  counsel 
were  engaged,  were  not  in  any  respect  parties  to 
the  question  at  issue,  nor  occupying  such  a  posi- 
tion in  relation  thereto,  as  authorized  any  judi- 
cial notice  of  them.  The  trial  was  not  in  the 
nature  of  an  appeal,  at  the  instigation  or  declara- 
tion of  one  individual  against  another,  but  solely 
at  the  suit  of  the  United  States,  having  for  its 
object  the  vindication  of  discipline,  and  the  sat- 
isfaction of  public  justice.  In  so  solemn  a  mat- 
ter as  was  then  presented  for  adjudication,  in- 
volving a  question  of  law  and  morals,  of  reputa- 
tion and  of  life,  the  weightiest  inducements  were 
presented  to  the  minds  of  the  court,  for  a  just 
and  conscientious  decision — to  admit  nothing 
which  might  prejudice  the  rights  of  the  prisoner, 
to  exclude  nothing  which  could  mar  the  just 
claims  of  private  safety. 

In  cases  where  it  is  necessary  to  have  the  as- 

1  See  the  Trial,  by  J.  F  Cooper,  pp.  8,  9. 


320  OP   THE    JUDGE    ADVOCATE. 

CHAPTER     sistance  of  the  accuser,  or  the  person  who  has 
zv*        suffered  by  the  acts  or  conduct  of  the  accused, 
can  be  insisted  upon  on  the  part  of  the 


£  eumined  prosecution  is,  to  ask  of  the  court  permission  for 
such  person  to  remain,  after  being  examined  as 
a  witness — to  whom  reference  may  be  made  for 
information,  or  particulars  of  the  offence  charged. 

Accuser  when    And  if  a  person  bringing  forward  an  accusation 

not  a  military  t  °     ° 

person  can  ap-  against  any  person  in  the  army  or  navy,  is  not 
informer  or  wit-  himself  an  officer  either  of  the  army  or  the  navy, 
he  can  only  appear  in  court  as  an  informer — or 
a  witness. 

It  has  been  thought  by  some,  to  be  a  bad  prac- 
tice to  make  the  judge  advocate  the  prosecutor, 
because  it  is  said  to  throw  an  unfair  weight  into 
the  scale  against  the  prisoner,  and  this  happens 
from  his  naturally  feeling  some  desire  to  succeed 
in  the  prosecution ;  from  being  privy  to  the  con- 
sultations of  the  court,  he  may  bear  hard  against 
him  ;  and  that  he  is  also  the  legal  adviser  of  the 
judge  advocate  court.  But  on  the  other  hand,  it  is  contended 
£  aiiPca^8.utor  that  it  is  the  safer  rule  to  make  the  judge  advo- 
cate the  prosecutor  in  all  cases.  Not  being  a 
party,  and  having  no  interest  in  the  issue,  he 
must  be  considered  as  unprejudiced  against  the 
defendant,  and  being  entirely  impartial,  he  stands 
forward  as  the  public  prosecutor,  only  to  see 
justice  done  between  the  accused,  and  the  ac- 
cuser.1 

Advantages  of  ,  Whatever  arguments  may  be  advanced  to 
support  either  the  one  or  the  other  proposition, 
the  writer  is  decidedly  in  favor  of  the  latter 
opinion,  and  thus  would  prefer  to  see  the  judge 
advocate  always  occupy  the  place  of  prosecutor. 

i  Hough. 


OP   THE   JUDGE    ADVOCATE.  321 

From  his  own  experience,  he  has  no  doubt  that  CHAPTER 
this  course  saves  a  great  deal  of  time  to  the  xv> 
court,  and  prevents  the  exhibition  of  violent 
feelings,  or  intemperate  language  on  the  part  of 
the  parties,  when  they  are  brought  in  opposition 
in  the  presence  of  the  court ;  and  he  is  led  to 
this  conclusion,  not  from  having  seen  a  contrary 
practice,  (of  which  he  can  now  recal  no  in- 
stance,) but  from  the  observation  of  the  resentful 
and  embittered  feelings  which  are  sometimes 
provoked  by  the  mere  appearance  of  a  party  in 
the  character  of  a  witness. 

Military  law  is  in  general  plain  and  simple  in 
its  provisions,  and  requiring  but  good  sense  to 
interpret  it,  either  in  justice  or  equity ;  though 
should  a  legal  difficulty  arise,  there  is  the  judge 
advocate  to  whom  reference  can  be  made  ;  and 
if  he  has  been  appointed  as  a  duly  qualified  per- 
son, no  deficiency  will  ever  be  experienced  in 
the  conduct  of  the  prosecution.  It  is  objection- 
able, too,  to  have  the  presence  of  many  persons 
taking  part  in  the  business  of  the  court,  as  it  in 
general  only  tends  to  prolong  and  complicate  the 
proceedings.  As  it  has  been  before  remarked, 
that,  under  the  present  laws  for  the  constitution 
of  courts-martial  for  the  land  service,  no  other 
prosecutor  than  the  judge  advocate  can  appear, 
the  above  remarks  would  hardly  be  necessary, 
as  not  being  applicable  to  any  diversity  of  opin- 
ion or  practice  which  might  arise ;  but  in  the 
naval  service,  as  there  is  still  some  latitude  of 
indulgence  claimed  on  that  head,  they  may  not 
be  altogether  useless. 

The  manner  in  which  military  prosecutions 
before  courts-martial  are  to  be  conducted,  has  not 

41 


322  OP   THE   JUDGE    ADVOCATE. 

CHAPTER     been  regulated  by  any  statutory  provisions.     But 
xv* as  the  principle  is  acknowledged  and  prevails, 


3*orm  that  in  every  instance  in  which  forms  or  rules  of 
proceeding  before  such  courts  have  not  been  es- 
tablished by  legal  requirements,  or  settled  by 
custom,  the  procedure  must  be  in  accordance 
with  the  practice  which  governs  criminal  trials 
in  the  ordinary  courts  of  law.  The  rules,  then, 
which  are  to  govern  icourts-martial  in  the  inves- 
tigation of  charges  submitted  to  them,  are  easily 
arrived  at,  and  have  been  generally  understood. 
Remarks  upon  It  was  therefore  a  matter  of  some  surprise,  that 

the  proposed  de- 
parture from      in   the   trial  of   Commander  Alexander  Slidell 

settled  rules,  in 

the  trial  of  com-  Mackenzie,  the  judge  advocate  should  have  pro- 

mander  Mac- 
kenzie, posed  a  novel  way  of  conducting  the  prosecu- 
tion, not  only  adverse  to  all  former  precedent, 
but  to  some  extent  deemed  perilous  to  the  pris- 
oner. Believing  that  his  positioji  was  different 
from  that  in  which  it  had  been  customary  to 
view  him,  he  said  he  did  not  consider  himself  as 
occupying  the  place  of  a  prosecuting  law  officer 
in  the  civil  tribunals,  but  believed  his  duty  to  be 
akin  to  that  which  was  devolved  on  the  English 
judges  at  that  time  when  traversers  were  put 
on  trial  without  the  privilege  of  counsel ;  and 
therefore  claimed  the  right  of  asking  any  ques- 
tions which  would  be  legal,  from  either  side.1 
The  extent  of  this  right,  so  claimed,  would  have 
been  indefinite,  and  have  amounted  to  an  indul- 
gence never  allowed,  (excepting  under  particular 
circumstances  of  difficulty  in  eliciting  a  fair  and 
and  full  statement  from  a  reluctant  witness,)  of 
cross-examining,  and,  as  a  consequence,  of 
impeaching  the  witnesses  called  by  himself. 

1  J.  F.  Cooper's  Trial,  pp.  6,  7. 


OP   THE    JUDGE    ADVOCATE.  323 

Now  this  proposition  was  directly  in  opposition  CHAFTER 
to  the  rule  above  given,  as  it  departed  from  the  xv* 
usual  mode  adopted  in  the  criminal  courts.  It 
would  have  substituted  a  rule  which  had  toler- 
ance during  a  more  imperfect  condition  of  crim- 
inal jurisprudence  than  now  exists,  but  which 
has  long  since  given  way  to  privileges,  which 
have  been  accorded  to  the  prisoner,  under  more 
humane  and  enlightened  views.  But  the  rejec- 
tion of  the  proposition,  then  made  by  the  judge 
advocate,  could  have  had  no  effect  to  limit  the 
indulgence,  if  any,  which  the  prosecutor  might 
have  been  disposed  to  grant  the  prisoner,  but 
was  merely  restrictive  of  a  power  to  impugn  his 
own  testimony,  whenever  it  did  not  meet  the 
opinion  or  expectation  with  which  it  had  been 
presented.  Now  although  the  judge  advocate  is  judge  advocate 
prosecutor  for  the  United  States,  and  as  prosecu-  u^rt 
tor,  is  to  be  regulated  by  certain  acknowledged 
principles,  still  it  does  not  therefore  follow,  that 
he  is  to  be  otherwise  than  perfectly  impartial. 
He  is  neither  to  omit  any  thing  which  in  justice 
to  the  prisoner  ought  to  appear;  nor  on  the 
other  hand,  is  he  to  permit  the  interests  of  the 
public  to  suffer,  and  a  criminal  go  unpunished 
through  lenity  or  any  motive  whatever.  The 
prosecution  requires  firmness, — and  misfortune, 
for  that  is  frequently  interwoven  with  guilt,  de- 
mands compassion  ; — compassion,  which  softens 
the  rigors  of  a  severe  justice,  and  lends  its  com- 
forting and  reforming  suasion,  to  reclaim  the 
criminal  from  the  paths  of  vice. 

It  is  when  the  court  is  closed  for  the  con-  Duty  of  judge 
sideration  of  the  finding  and  sentence,  that  the 
iudge  advocate  is  called  upon  for  the  exercise  of 


324  OF    THE    JUDGE    ADVOCATE. 

CHAPTER  a  sound  discretion.  It  would  certainly  appeal 
xv-  to  be  an  unfair  advantage  given  to  the  prosecu- 
tion, should  the  judge  advocate,  when  the  court 
is  closed,  be  permitted  to  urge  a  verdict  of  guilty, 
by  the  presentation  of  any  argument.  This 
would  be  a  prejudice  to  the  accused  by  reason 
of  his  absence,  and  who,  if  allowed  the  like  op- 
portunity, might  offer  very  good  reasons  for  an 
opposite  conclusion.  The  duty  of  the  judge  ad- 
vocate seems  to  be  at  such  times,  to  put  the 
court  on  their  guard  against  deviation  from  es- 
sential forms,  or  violation  of  justice  in  their  final 
judgment.  It  might  be  perfectly  proper  for  him 
to  point  out  the  relevancy  of  testimony,  or  its 
legal  value,  but  not  to  attempt  to  weight  it,  and 
decide  upon  its  preponderance  to  one  side  or  the 
other ;  for  that  is  the  peculiar  and  exclusive 
duty  of  the  court.  In  whatever  matter  the 
judge  advocate  takes  part,  in  this  stage  of  the 
proceedings,  he  should  endeavor  to  distinguish 
between  what  really  is  of  a  ministerial,  and 
what  of  a  judicial  character.  Of  the  first,  it 
belongs  to  him  to  speak ;  but  with  the  second, 
he  is  in  no  degree  authorized  to  interfere. 
low!?  but'  the  Should  it  happen  that  a  court-martial  persevere 
judge 'advocate  in  an  illegal  measure,  or  an  unjust  opinion,  the 

may  record  his  °  '  * 

opinion.  judge  advocate  ought  to  enter  upon  the  record, 

tne  opinion  given  by  him  ;  for  though  he  would 
not  be  warranted  (or  allowed)  to  enter  his  dis- 
sent in  the  form  of  a  protest,  as  such  a  method 
implies  a  judicative  voice  which  he  does  not 
possess,  still  his  opinion  upon  the  controverted 
point  should  be  engrossed  with  the  proceedings, 
in  order  that  it  may  be  seen  that  he  has  per- 
formed his  duty,  and  be  "  absolved  from  all  irn- 


OF    THE    JUDGE    ADVOCATE.  325 

putations  of  failure  in  his  duty  of  giving  counsel.      CHAPTER 
The  error  or  wrong  may  be  then  fairly  brought        XY' 
under  consideration  of  the  power  with  whom  it 
lies  in  the  last  resort,  either  to  approve,  and 
order  into  effect,  or  to  remit  the  operation  of  the 
sentence."1 

While  the  judge  advocate  is  excluded  from  TO  give  counsel 

. .  .    .  and  advice. 

all  right  to  dictate  opinions  or  sentences  to  a 
court,  it  is  on  the  other  hand,  his  particular  pro- 
vince to  give  counsel  or  advice,  and  his  own  dis- 
cretion must  suggest  when  that  may  be  proper 
or  necessary. 

It  is  incumbent,  likewise,  upon  the  judge  ad-  Must  give  an 

,  ,  ,     J  j      i   •  •     •          opinion  when 

vocate,  whenever  the  court  demands  his  opinion  required  by  the 
to  give  it  fully  and  freely, — and  even  when  not 
requested,  it  is  his  duty  to  call  the  attention  of 
the  court  to  any  particular  fact,  or  circumstance, 
which  may  tend  to  guard  them  from  error. 

It  is  held,  indeed,  that  "  the  attendance  of  a  Propriety  of  re 
judge  advocate  at  a  court-martial  could  be  of  no  opinions  of6  the 

,  ,  ,,  j  .  .       judge  advocate. 

use  whatever,  were  he  not  allowed  to  insert  in 
the  proceedings  any  opinions  of  importance 
which  he  may  have  given  during  a  trial,  whe- 
ther they  were  adopted  by  the  court  or  not :" — 
and 

"  The  opinions  offered  by  the  judge  advocate 
form  an  essential  part  of  the  proceedings,  and 
that  without  their  insertion,  the  record  does  not 
exhibit  a  true  and  faithful  account  of  all  that 
took  place  during  the  trial ;  and,  consequently, 
that  the  approving  officer  becomes  called  upon, 
without  being  apprized  of  the  circumstances,  to 
decide  upon  the  merits  of  a  case  which  has  not 
been  fully  and  correctly  submitted  to  him."2 

1  Tytler.  2  Kennedy. 


326  OF    THE    JUDGE    ADVOCATE. 

CHAPTER         It  thus  seems  to  be  a  well  settled  point,  that 
**'        whenever  any  thing  occurs  in  the  progress  of  a 
i°n"  trial  which  calls  for  the  declaration  of  an  opinion 


£i. 


Judge  °^  ^ie  Judg6  advocate,  it  is  proper  that  such 
opinion  should  be  entered  on  the  record;  and 
the  only  control  which  the  court  may  exercise 
over  it,  consists  in  their  right  to  exact  of  the 
judge  advocate,  that  the  opinion  thus  given  be 
couched  in  respectful  terms  and  decorous  lan- 
guage. A  departure  from  this  requirement, 
would,  on  the  part  of  the  judge  advocate,  make 
him  amenable  to  censure. 
considerations  Now,  although  it  has  been  said,  that  it  is  not 

for  the  weigh-  ° 

ing  of  testimo-   the  duty  of  the  judge  advocate  to  weigh  oppo- 

ny,  and  duty  of  *  Jo 

the  judge  advo-  sing  evidence,  and  discuss  the  same  for  the  pur- 

cate. 

pose  of  influencing  the  decision  of  the  court  ;  yet 
it  is  undoubtedly  his  duty,  should  he  observe 
the  court  inclined  to  find  a  verdict  contrary  to 
evidence,  to  point  out  the  same  and  prevent,  if 
possible,  a  wrong  decision.  In  the  distinction 
here  endeavored  to  be  presented,  it  must  be  seen 
that  the  difference  arises  from  what  is  a  mere 
conclusion  in  the  minds  of  the  court,  from  the 
consideration  of  opposing  evidence,  and  a  fact, 
which  has  been  misunderstood,  and  by  which 
that  conclusion  is  to  be  determined. 
The  value  of  The  value  of  the  opinions  of  the  judge  advo- 

the  judge  advo- 

cate's opinions,  cate,  thus  entered  upon  the  record,  may,  at  some 
future  period,  be  well  demonstrated  for  the  pro- 
tection of  the  members  of  the  court,  by  present- 
ing with  more  particularity  to  the  attention  of 
the  approving  authority,  the  merits  of  the  contro- 
verted points,  and  thereby  preventing,  at  times, 
the  execution  of  their  judgment  ;  which,  if  illegal, 
would  render  them  liable  to  damages  in  a  civil 


OF    THE   JUDGE    ADVOCATE. 


action.     It  is  true  that  judges  must  necessarily     CHAPTER 
be  allowed  considerable  indulgence  for  the  errors        xy> 
which  they  unintentionally  commit,  as  no  one 
can  be  so  perfect  as»  always  to  avoid  them  ;  —  a 
mistake,  therefore,  into  which  an  honest,  well- 
meaning  man  may  innocently  fall,  would  not 


him  liable  to  punishment  ;  but  the  law  The  law  Pre- 

•  1  •    ,  ac*    •  f>     sumes  that  the 

presupposes  in  the  magistrate  a  sufficiency  of  judges  under- 
knowledge  to  enable  him  to  execute  justice;  SSSjJSriT 
and  presumes  that  he  knows,  what  it  is  ne- 
cessary, in  the  nature  of  his  office,  he  should 
know  ;  —  ignorance  of  the  law  would  not,  there- 
fore, excuse  him.  So  with  members  of  courts- 
martial,  who,  when  sitting  in  a  judicial  capacity, 
are  subject  to  the  same  rule  ;  and,  consequently, 
should  they  obstinately,  in  defiance  of  the  state- 
ment of  law  made  by  the  properly  appointed 
legal  adviser  of  the  court,  proceed  to  judgment, 
they  could  not  expect  impunity  for  the  wrong. 

The  duty  of  the  judge  advocate  may  be  un-  judge  advocate 
derstood  as  "being  at  this  stage  of  the  proceed-  SL^m™ 
ings,  simply  to  act  as  registrar  of  the  court,  and 
to  advise  on  legal  points  when  his  opinions  may 
be  demanded  ;  he  necessarily  abstains  from  ma- 
king any  remarks  by  which  his  judgment,  as 
to  guilt  or  innocence  of  the  prisoner  may  be  as- 
certained." But  —  "  if  at  any  time,  by  inadver- 
tence, a  member  in  passing  sentence  should 
deviate  from  the  letter  of  the  law,  or  assume  a 
power  at  variance  with  it,  it  is  clearly  the  duty 
of  the  judge  advocate  to  point  out  the  error."1 

•*       °  *  When  passing 

It  is  likewise  said  that  "  when  the  court  is  ?entence  the 

judge  advocate 

passing  sentence,  the  iudge  advocate  ought  not  offers  no  °Pin- 

.     .     '  .  lon»  an< 

then  to  offer  any  opinion,  as  he  is  in  no  man- 

1  Simmons,  p.  212. 


OP    THE    JUDGE    ADVOCATE. 

CHAPTER     ner  answerable  for  the  adequacy  or  inadequa- 
xv'        cy   of  the  punishment   which  the   court  may 
award."1 

General  rule          From  the  above  observations  it  may  be  con- 
when  the  court  * 

is  deliberating    eluded  as  a  rule, — that  when  the  court  is  delib- 

upon  the  find- 
ing or  sentence,  crating  upon  the  finding,  or  the  sentence,  the 

judge  advocate  should  interpose  an  opinion  only 
when  there  is  danger  of  an  irregular  or  illegal 
decision  being  made ;  and  that  in  all  questions 
within  the  discretion  or  competency  of  the  court 
to  determine,  he  should  take  no  part.  To  the 
members  themselves  attaches  a  responsibility  for 
every  act ;  and  while  they  honestly  observe  the 
limits  of  legal  authority  defined  for  their  guid- 
ance, they  are  independent  of  all  other  control. 
caution  to  be  ft  js  here  recommended  particularly  to  the  at- 

observed  by  r  j 

M.dge  advocate,  tention  of  all  persons  officiating  as  judges  advo- 
cate, to  be  cautious  not  to  irritate  the  court  by 
frequent  and  unnecessary  opposition.  There  is 
no  part  of  the  judge  advocate's  duty  which  de- 
mands a  larger  portion  of  good  sense  for  his  gov- 
ernment than  this — and  which,  if  not  properly 
observed,  will  most  assuredly  lead  to  disagree- 
able results.  Young  men,  when  acting  in  the 
capacity  of  judge  advocate,  are  sometimes  ob- 
trusive of  their  opinions,  and  pertinacious  in 
pressing  them  when  no  sufficient  cause  exists 
for  so  doing.  Frequent,  or  dogmatic  contradic- 
tion of  the  views  which  a  court-martial  are  in- 
clined to  follow,  destroy  thereby  the  just  influ- 
ence of  the  prosecutor,  and  but  exacerbate  the 
feelings,  without  enlightening  or  assisting  the 
judgment  of  the  members ; — for  such  interrup- 
tions are  looked  upon  as  the  mere  promptings  of 

i  Kennedy. 


OP    THE    JUDGE    ADVOCATE. 


egotistical  pride,  or  the  petty  vanity  of  assumed     CHAPTER 
knowledge.  xv" 

A  judge  advocate  should  not,  therefore,  make 
points  for  discussion ;  nor  insist  upon  recording 
his  opinions  on  trifles.  An  ingenuous  remark, 
will  frequently  be  sufficient  to  call  the  attention 
of  the  court  to  matter  of  doubtful  propriety,  .and 
elicit  a  just  attention  to  the  subject.  Whenever 
a  question  arises  which  is  essential  to  the  just 
conclusions  of  the  court,  and  upon  which  the 
opinion  of  the  judge  advocate  is  requested — or 
if  the  court  pursue  a  way  in  contradiction  to 
what  he  believes  to  be  necessary  and  lawful,  it 
will  be  his  duty  to  express  his  views  thereon,  in 
the  just  fulfillment  of  his  office. 

In  so  doing  the  utmost  deference  to  the  dig-  Propriety  of «. 
nity  of  the  court  should  be  apparent ;  a  delicate  observed. 
courtesy  and  modest  demeanor  should  be  cha- 
racteristic of  his  address,  while  his  argument 
may  be  replete  with  all  the  vigor  and  energy 
which  knowledge  imparts,  and  which  truth  de- 
mands. 

It  is  in  reciprocal  good  feelings  between  the  Mutual  confi- 
court  and  their  law  adviser,  that  justice  finds  theCcourttVandn 
the  surest  support.     In  the  respect  which  the  judgea 
one   should  manifest   for  the  body,  as  whose 
counsel  he  is  appointed,  is  found  the  source  of 
that  just  confidence  in  the  minds  of  the  other, 
which  lightens  all   their  labors, — and  without 
which  the  judge  advocate  is  more  of  an  incnm- 
brance  than  an  aid. 

The  business  of  the  court  having  been  con-  Record  to  be 
eluded,  the  record  of  the  proceedings  is  signed 
by  the  president  of  the  court,  and  countersigned 
by  the  judge  advocate.     The  ninetieth  (90th) 

42 


330 


OP   THE   JUDGE    ADVOCATE. 


CHAPTER 
XV. 


Original  pro- 
ceedings. 


Record,  how 
disposed  of. 


Judge  advocate 
for  courts  of  in- 
quiry. 


article  of  war  prescribes  in  what  manner  the 
same  shall  be  disposed  of,  by  directing  that 
"Every  judge  advocate,  or  person  officiating  as 
such,  at  any  general  court-martial,  shall  trans- 
mit, with  as  much  expedition  as  the  opportunity 
of  time  and  distance  of  place  can  admit,  the 
original  proceedings  and  sentence  of  such  court- 
martial  to  the  secretary  of  war,  which  said  origi- 
nal proceedings  and  sentence  shall  be  carefully 
kept  and  preserved  in  the  office  of  said  secretary, 
to  the  end  that  the  persons  entitled  thereto  may 
be  enabled,  upon  application  to  the  said  office, 
to  obtain  copies  thereof." 

By  the  original  proceedings  and  sentence  of 
the  court-martial,  is  meant  the  fair  copy  which 
has  been  submitted  from  day  to  day  for  the  ob- 
servation and  inspection  of  the  court. 

The  disposition  of  the  record  is  not  literally 
in  consonance  with  the  directions  laid  down  in 
the  above  cited  article  of  war,  because  the  exact 
observance  of  it  would  not  expedite  a  decision 
by  the  approving  officer,  but,  on  the  contrary, 
would  retard  it ;  and,  moreover,  conflict  with  the 
intention  of  the  preceding  article,  which  gives  to 
every  officer  authorized  to  order  a  general  court- 
martial,  the  power  to  pardon  or  mitigate  any 
punishment  ordered  by  such  court — except  in 
certain  cases, — when  he  is  to  transmit  to  the 
president,  for  his  determination,  the  proceedings 
of  the  court.  In  consequence  of  such  power 
vested  by  the  law,  the  record  is  always  trans- 
mitted direct  to  the  officer  who  has  commanded 
the  court  to  assemble. 

The  duties  of  a  judge  advocate  before  a  court 
of  inquiry,  are  in  many  respects  the  same,  as 


OF    THE    JUDGE    ADVOCATE.  331 

when  officiating  before  a  general  court-martial —     CHAPTER 
though  of  limited  extent. 


A  court  of  inquiry  may  be  composed  of  from  Composition  of 

;  ?  court  of  in- 

One  to  three  officers,  with  a  judge  advocate  or  quiry. 

suitable  person  as  recorder,  to  reduce  the  pro- 
ceedings and  evidence  to  writing ;  all  of  whom 
are  to  be  sworn  according  to  a  prescribed  oath. 
— (See  93rd  article  of  war.) 

The  iudge  advocate  /prepares  the  case  for  in-  Duties  of  judgo 

advocate  on 

vestigation.      He  summons   the  necessary  wit-  courts  of  m- 

.  .    I  .        .  i      quiry. 

nesses,  and  gives  notice  to  the  parties  interested, 
as  to  the  place  and  time  of  meeting.  Although 
he  does  not  act  in  the  capacity  of  a  prosecutor, 
nor  has  a  deliberative  voice  in  the  proceedings, 
still  it  is  his  duty  to  examine  the  witnesses,  (as 
he  is  often  peculiarly  fitted  so  to  do,  by  pre- 
viously making  himself  acquainted  with  the 
leading  points  of  the  subject  of  investigation,) 
and  thus  facilitate  the  business  of  the  court. 
Whatever  aid  the  judge  advocate  may  be  ena- 
bled to  lend  the  court,  towards  a  full  knowledge 
of  the  merits  of  the  case,  he  is  bound  to  offer ; 
for  it  is  to  his  exertions,  as  well  as  of  the  mem- 
bers of  the  court,  that  a  searching  inquiry  into 
the  very  minutiee  of  the  subject  of  investigation 
may  be  made.  The  judge  advocate  also  swears 
the  witnesses,  in  the  same  way  as  they  are 
sworn  before  a  court-martial ;  and  he  records 
the  testimony  and  keeps  the  proceedings  from 
day  to  day,  after  the  like  manner. 

As  the  proceedings  of  a  court  of  inquiry,  by  judge  advocat* 
having  the  witnesses  sworn,  partake  of  a  judi-  sen  egal  advi" 
cial  character,  the  judge  advocate  must  be  con- 
sidered as  a  legal  adviser  to  the  court,  and  he  is 
therefore  bound  to  see  that  no  improper  evidence 


OF    THE   JUDGE    ADVOCATE. 


CHAPTER     is  admitted,  and  to  put  the  court  on  their  guard 
XY'         against  the  commission  of  legal  errors.    He  also 
will  assist  the  court  in  methodizing  the  testimo- 
ny it  may  receive,  and  afford  all  other  assistance 
by  which  the  whole  circumstances  of  the  case 
may  be  developed,  and  laid  before  the  convening 
authority  in  a  clear  and  explicit  form. 
First  meeting  of       Upon  the  first  meeting  of  the  members  ap- 

the  court  of  in-  *• 

<juiry.  pointed  to  constitute  a  court  of  inquiry,  the 

judge  advocate  reads  the  warrant  or  order  di- 
recting the  assembling  and  appointing  the  mem- 
bers and  judge  advocate;  he  demands  of  the 
parties  if  they  have  any  objection  to  any  mem- 
ber, which  question,  together  with  the  answers, 
must  be  recorded.  The  court  is  then  sworn  by 
.  him,  after  which  the  president  of  the  court  ad- 
ministers to  him  the  prescribed  oath. 

Special  instruc-       Should   any   special   instructions  have  been 

turns  read.  t  i  i 

given  to  the  court  for  their  guidance  or  govern- 
ment, in  the  inquiry  about  to  be  entered  upon, 
the  judge  advocate  will  now  read  them — and  all 
these  particular  acts  are  to  be  recorded  in  the 
proceedings. 
Mode  of  proce-  The  court,  when  necessary,  will  deliberate 

dure  decided.  •*  ' 

upon  the  best  mode  of  procedure,  and  having 
decided  that  point,  the  complainant  (if  there  is 
one)  and  the  accused  will  be  called  in.  The 
witnesses  are  next  called  and  examined,  and  the 
evidence  regularly  taken  down,  in  the  same  or- 
der that  is  observed  on  trials  before  courts- 
martial. 
Fair  copy  of  The  judge  advocate  makes  up  a  fair  copy  of 

proceedings.  J 

the  proceedings  from  day  to  day,  which  are  read 
over  at  the  next  meeting  of  the  court. 

The  business  of  the  court  having  been  com- 


OF    THE    JUDGE    ADVOCATE.  333 


pleted,  the  record  will  be  authenticated  by  the     CHAPTER 
signature  of  the  president  and  the  judge  advo- 


XV. 


cate,  and  by  the  latter  transmitted  to  the  author-  t^ac°rddaanudthen- 
,  ity  by  which  the  court  was  convened.  transmitted. 

Authority,  by  legislative  sanction,  has  been  also  Naval  courts 

J        "*       °  of  inquiry. 

given  for  the  ordering  of  courts  of  inquiry  for 
the  naval  service  ;  and  such  authority  is  vested 
in  "  the  President  of  the  United  States,  the  se- 
cretary of  the  navy,  and  the  commander  of  a 
fleet  or  squadron."1  The  same  provisions  for 
the  government  of  the  cojirt  in  the  latter  case 
have  been  declared,  as  those  which  exist  for 
army  courts  of  inquiry — and  therefore  the  re- 
marks which  have  been  presented  above  are 
equally  applicable  to  the  one  as  the  other. 

Such,  as  are  embraced  within  the  observa-  observation* 
tions  comprising  the  present  chapter,  appear  to 
be  the  distinguishing  traits  of  the  character  of 
the  judge  advocate, — his  rights,  his  duties,  and 
his  obligations.  Important  as  the  functions  of 
his  office  are,  and  so  much  dependent  on  the 
proper  exercise  of  them,  it  is  somewhat  strange, 
that  so  great  a  period  of  time  should  have  been 
permitted  to  elapse,  without  having  the  one 
clearly  defined,  and  the  other  judiciously  govern- 
ed ;  and  although,  in  the  present  essay,  the  au- 
thor can  hardly  pretend  that  he  has  accomplish- 
ed so  necessary  an  object,  still  he  indulges  the 
hope,  with  a  well  settled  confidence,  that,  in 
the  little  which  he  has  attempted,  the  services 
may  find  a  decided  benefit. 

1  Roman's  Naval  Laws,  p.  66. 


CHAPTER  XVI. 

OP   EVIDENCE. 

CHAPTER         THE  subject  of  evidence,  which  presents  so 

-  wide  a  field,  to  be  scrutinized  by  those  who  are 

ferenceoef extent  engaged  in  the  administration  of  justice,  in  the 

for  civil  and  j  •  ..,  •. ,  />!•/••          /• 

military  inves-  ordinary  or  civil  walks  of  hie,  is  of  compara- 
tively limited  extent  as  applied  for  the  purposes 
of  military  investigation:  and  this,  because  in 
the  latter  cases  there  is  a  greater  similarity  in 
the  questions  to  be  considered,  arising  from  the 
absence  of  those  diverse  conditions,  and  compli- 
cated circumstances  both  of  law  and  facts,  which 
distinguish  judicial  proceedings  in  the  ordinary 
courts  of  justice. 

Leading  princi-       It  is  unnecessary,  therefore,  that  military  per- 
importantto    '  sons   should  be  possessed  of  a  knowledge  of 

military  men.          .  .  ,,.... 

those  niceties  and  distinctions,  in  regard  to  evi- 
dence, which  is  so  essential  to  the  legal  practi- 
tioner in  his  daily  business;  but  as  the  rules 
which  govern  courts-martial  are  the  same  as 
those  obtaining  in  the  criminal  courts  of  the  land, 
it  is  of  essential  importance  that  military  men 
should  well  understand  the  general  principles  of 
the  law  of  evidence. 

Founded  in  ex-  These  are  gathered  from  the  past,  in  the  grad- 
ual experience  of  able  men,  whose  lives  have 
been  devoted  to  the  science  of  law,  and  been 
confirmed  by  time.  They  are  founded  on  the 
"observations  of  human  conduct,  on  common 


OF    EVIDENCE.  335 

life,  and  living  manners,,"  and  are  acknowledged     CHAPTER 
as  "  rules  of  law  because  they  are  just  and  rea-        XVI< 
sonable  ;'n  and  are  not,  therefore,  to  be  regarded 
as  mere  arbitrary  dicta,  upon  the  observance  of 
which  a  formal  uniformity  may  be  preserved,  or 
the  convenience  of  the  court  ensured,  but  as 
great  moral  truths  which  govern  or  influence  the 
acts  and  opinions  of  men,  and  are  essential  to 
be  known,  and  defined  for  the  safety  of  society. 

In  the  observations  which  it  is  the  intention  Distinctions  to 
of  the  writer  to  embody  in  the  present  chapter,  be  observed- 
and  which,  in  substance,  are  derived  from  ap- 
proved writers  on  evidence,2  it  will  be  necessary 
to  observe  the  distinction  remarked  upon  above, 
and  to  designate  such  rules  and  principles  only 
which  demand  observance  by,  or  are  more  parti- 
cularly applicable  to  the  practice  of  courts-mar- 
tial. The  subject  will  be  treated  of  under  the 
following  heads:  1.  Of  eyidence  in  general. 
2.  Of  direct  or  positive  evidence.  3.  Of  pre- 
sumptive evidence.  4.  Of  the  competency  of 
witnesses.  5.  Of  the  examination  of  witnesses. 

1.  Evidence  is  that  which  (independent  of  all  Definition  of 
comment  and  argument,)  is  legally  submitted  to 
a  court,  or  jury,  to  enable  them  to  decide  upon 
the  questions  in  issue.  Evidence  and  proof  are 
often  confounded,  as  implying  the  same  thing; 
but  they  differ  widely.  Proof  is  the  legal  cre- 
dence which  the  law  gives  to  evidence, — while 
evidence  is  the  legal  mode  in  which  that  proof 
is  made:  and  hence  the  law  will  admit  of  no 
proof  which  is  not  made  in  accordance  with  its 
established  principles.  These  principles  or  rules, 
then,  relate  to,  and  are  to  regulate  or  determine 

1  Phillips'  Evidence.  2  Phillips,  Starkie,  and  others. 


336 


OF    EVIDENCE. 


CHAPTER 
XVI. 


Parol  evidence. 


Written  evi- 
dence. 


Of  what  evi- 
dence consists. 


the  quality  and  admissibility  of  evidence,  the 
means  or  instruments  by  which  it  is  conveyed 
to  the  minds  of  the  jury,  the  method  of  procu- 
ring and  using  them  with  effect,  and  the  quan- 
tity and  sufficiency  of  evidence  for  the  proof  of 
particular  facts  or  issues. 

Evidence  is  of  two  kinds,  parol  and  written. 

Parol  Evidence,  is  such  as  is  given  by  wit- 
nesses in  open  court,  and  is  understood  to  be  of 
matters  within  the  personal  cognizance  of  the 
speaker. 

Written  Evidence  consists  of  records ;  deeds ; 
books  of  account ;  military  orders ;  letters,  &c., 
which  are  admissible  after  the  particular  proof 
of  their  authenticity  has  been  presented. 

Evidence  consists  of  those  facts  and  circum- 
stances, which  can  be  communicated  by  compe- 
tent and  legal  means  to  a  jury,  to  enable  them 
to  decide  upon  the  questions  in  issue ;  and  since 
facts  are  fleeting  and  transitory,  their  history 
must  be  drawn  from  the  only  depositories  in 
which  it  can  reside, — the  memories  of  living 
witnesses,  or  written  documents  in  which  such 
facts  have  been  recorded.1 

Having  in  view  the  above  definitions,  the  first 
consideration  is — what  facts  and  circumstances 
may  be  communicated  to  the  minds  of  the  jury, 
assuming  that  their  existence  can  be  established 
by  competent  means  1  and  what  are  those  means 
of  communication,  or  by  what  instruments  may 
facts  be  conveyed  to  the  understanding  of  the 
jury? 

By  facts  and  circumstances,  are  meant  all 
things  and  relations,  whether  natural  o*r  artificial, 

1  Starkie,  p.  14. 


OF    EVIDENCE.  337 

* 

which  really  exist,  whether  their  existence  be     CHAPTER 
perceptible  by  the  senses  or  otherwise  ;l  and  it       XVI> 
is  clear  that  a  fact  may  be  communicated  to  a 
jury,  and  is  in  itself  communicable,  provided  it 
can  be  so  communicated  by  adequate  or  compe- 
tent means  ;  and  under  such  conditions  the  con- 
sideration would  be — has  the  fact  been  commu- 
nicated in  such  a  manner,  as  to  authorize  the 
jury,  legally,  to  notice  it.  7 

The  general  rule  upon  the  subject  is  this,  that  General  rule, 
all  facts  and  circumstances,  upon  which  any 
reasonable  presumption  or  inference  can  be 
founded  as  to  the  truth  or  falsity  of  the  issue  or 
disputed  fact,  are  admissible  in  evidence;  pro- 
vided, such  facts  and  circumstances  can  be  sub- 
stantiated by  legal  means.  This  rule,  however, 
is  subject  to  some  exceptions  growing  out  of  con-  • 

siderations  of  policy. 

When  direct  evidence  can  be  obtained  of  the 
disputed  fact,  it  is  essential  also  to  justice,  that 
such  evidence  should  be  liable  to  contradiction 
and  confirmation  from  collateral  circumstan- 
ces ; — and 

From  the  frequent  failure  of  direct  evidence, 
there  arises  a  necessity  of  depending  wholly 
upon  presumptions  and  proofs  from  collateral 
circumstances. 

2.  Direct  or  positive  evidence,  is  when  the  facts  Direct  or  posi 
in  dispute  are  communicated  by  those  who  have 
had  actual  knowledge  of  them  by  means  of  their 
senses,  and  where,  therefore,  the  jury  may  be 
supposed  to  perceive  the  facts  through  the  organs 
of  the  witness.  Of  this,  it  is  not  necessary 
to  speak  further,  as  the  very  definition  of  it  is 

1  Starkie,  p.  15. 

43 


338 


CHAPTER 
XVI. 


Presumptive 
evidence. 


Evidence  an  in- 
ductive science. 


Basis  of  pre  • 

sumptions. 


OF    EVIDENCE. 

sufficiently  explanative, — the  witness  speaking 
directly  to  a  fact,  from  his  own  immediate  know- 
ledge. 

3.  Presumptive  evidence  is,  as  the  language 
imports,  where  a  fact  or  circumstance  not  directly 
or  positively  known,  is  presumed  to  exist,  or  to 
have  had  place,  from  other  facts  or  circumstan-. 
ces  which  are  known.  This  is  also  called  cir- 
cumstantial evidence.  This  is  a  branch  of  the 
subject  upon  which  observations  might  be  mul- 
tiplied to  a  great  extent.  It  has  engaged  the  at- 
tention, and  commanded  the  reasoning  powers 
of  many  able  writers  ;  and  its  vast  importance 
in  all  judicial  proceedings,  is  emphatically  de- 
clared, in  saying,  that  private  interests  and  pub- 
lic safety  are  dependent  upon  a  discreet  under- 
standing, and  appreciation  of  the  principles  by 
which  it  is  governed. 

Evidence  may  be  called  a  purely  inductive 
science,  depending,  as  it  does,  upon  reason,  ex- 
perience, and  reflection.  Being  progressive  in 
its  nature,  it  involves  considerations  of  the  phy- 
sical or  mechanical,  and  the  moral  and  intellec- 
tual world,  and  opens  up  to  the  mind,  one  of  the 
broadest  fields  for  speculation  and  study. 

The  basis  of  all  presumptions,  is  evidently  the 
necessary  or  usual  connection  between  facts  and 
circumstances,  and  the  knowledge  of  which  is 
the  result  of  observation  and  reflection ;  we  ac- 
cordingly infer  the  existence  of  a  fact,  not  posi- 
tively known,  from  the  connection  which  it  has 
with  others  which  are  known ;  and  upon  this 
principle  all  our  knowledge  of  those  relations 
and  existences,  which  are  not  perceptible  by  the 
senses,  must  depend.  The  force  of  these  prh» 


I 

OF    EVIDENCE.  339 

ciples  is  perceived  by  all  mankind,  by  the  un-     CHAPTEE 
learned  as  well  as  the  learned,  and  acted  upon        XYI> 
daily   in   the  ordinary  occurrences   of  life.     It 
is  their  natural  truthfulness  which  recommends 
them  for  the  guidance  of  man ;  and  presump- 
tions could   never  have   been  adopted   as   the 
means  of  proof,    before  a  jury,  if  their  nature 
and  force    could  not  be  estimated  by  men  of 
plain  and  ordinary  sense  and  discretion.1 

The  human  mind  is  manifestly  adapted  to  the 
general  laws  of  nature, — moral  and  physical, 
and  they  consist  in  the  regular  connection  and 
uniform  operation  which  is  to  be  observed  in  the 
same  circumstances  and  ideas.  If  this  were  not 
so,  there  could  be  no  system  ;  and  mere  casual  or 
fortuitous  coincidences  would  destroy,  or  rather 
make  useless,  all  experience  and  observation. 
But  as  experience  constantly  points  out  the  gen- 
erality of  the  laws  of  nature,  this  generality  be- 
comes a  principle,  and  hence  a  safe  rule  of  de- 
duction is  established,  and  so  dependent  upon  it, 
that  it  is  assumed  that  what  has  occurred  once, 
will  occur  again  under  the  same  circumstances. 
The  passions  and  motives  of  mankind,  which  so 
diversify  conduct,  are  enduring  throughout  time, 
or  modified  only  by  different  objects,  partial  re- 
straints of  law,  and  artificial  manners  and  cus- 
toms of  life.  A  knowledge  therefore  of  the  hu- 
man character,  acquired  in  the  same  way  by 
which  a  knowledge  of  the  mechanical  laws  of 
nature  is  obtained,  by  experience  and  reflection, 
is  sufficient  to  establish  such  principles  of  pre- 
sumptive proof  for  the  ascertainment  of  the  con- 
duct of  individuals,  as  will  fully  satisfy  the  judg- 

i  Starkie,  p.  23. 


340 


OP    EVIDENCE. 


CHAPTER 
XVI. 


Necessity  that 
circumstantial 
evidence  be 
well  under- 
stood. 


merit,  in  the  absence  even  of  all  positive  testi- 
.  mony. 

Presumptions,  and  strong  ones,  are  continually 
founded  upon  a  knowledge  of  the  human  char- 
acter, and  the  motives,  passions  and  feelings  by 
which  the  mind  is  usually  influenced.  Tht 
effect  of  particular  motives  upon  human  conduct, 
is  a  matter  of  every  man's  observation  and  ex- 
perience to  a  greater  or  less  extent ;  and  in  pro- 
portion to  his  attention,  means  of  observation, 
and  acuteness,  every  one  becomes  a  judge  of  the 
human  character,  and  can  conjecture,  on  the  one 
hand,  what  would  be  the  effect  and  influence  of 
motives  upon  any  individual  under  particular 
circumstances ;  and  on  the  other  hand,  is  able 
to  presume  and  infer  the  motives  by  which  an 
agent  was  actuated,  from  the  particular  course 
of  conduct  which  he  adopted.1 

It  is  deemed  essential  to  the  well  being,  if  not 
to  the  very  existence  of  society,  that  the  nature 
of  circumstantial  evidence  should  be  well  under- 
stood, that  the  secrecy  with  which  crimes  are 
committed,  should  not  secure  impunity  to  the 
offender.  But  at  the  same  time,  it  is  to  be  re- 
marked, that  in  no  case,  and  upon  no  principle, 
can  the  policy  of  preventing  crimes  and  protect- 
ing society,  warrant  any  inference  which  is  not 
founded  on  the  most  full  and  certain  conviction 
of  the  truth  of  the  fact,  independently  of  the  na- 
ture of  the  offence,  and  of  all  extrinsic  consi- 
derations whatever.  Nor  should  the  nature  of 
the  crime  be  permitted  to  influence  in  any  case, 
the  measure  of  proof;  and  circumstantial  evi- 
dence is  allowed  to  prevail  to  the  conviction  of 

i  Starkie,  p.  28. 


. 
f 

OF   EVIDENCE.  341 

an  offender,  not  because  it  is  necessary  and  poli-     CHAPTEB. 
tic  that  it  should  be  resorted  to,  but  because  it  is        XVI> 
in  its  own  nature,  capable  of  producing  the  high- 
est degree  of  moral  certainty  in  its  application.1 
These  general  observations  will  be,  it  is  be- 
lieved, sufficient  to  point  out  to  the  reader,  the 
distinctive  characteristics  of  the  subject,  —  a  pro- 
longed or  minute  inquiry  would  too  far  depart 
from  the  object  of  this  work,  and  swell  to  an  in- 
convenient bulk  the  volume,  whicfy  is  intended 
merely  as  a  convenient  reference  to  the  leading 
principles  of  the  law,  which  is  to  be  the  guide 
of  military  men  in  their  practical  duties  and  re- 
lations as  members  of  courts-martial  ;  and  as  the  Reference  to 
works  of  the  most  standard,  or  approved  writers 


upon  the  subject  of  evidence,  in  which  the  doc- 
trines relating  thereto  are  fully  discussed,  are  of 
easy  procurement  ;  the  writer  refers  others  to 
the  same  source,  from  which  he  has  derived  the 
principles  herewith  presented.  He  will,  there- 
fore, confine  himself  to  the  statement  of  the 
more  specific  and  practical  rules. 

First.  —  Evidence  is  to  be  confined  to  the  points  Evidence  con- 

1*n  ISSUe.  issue. 

The  sole  object  and  end  of  evidence  being  to 
ascertain  the  truth  of  the  disputed  points  in 
issue,  the  introduction  of  any,  not  having  a  clear 
reference,  either  directly  or  collaterally  to  the 
subject,  would  be  manifestly  unnecessary.  Such 
a  license  would  be  attended  with  certain  evils 
and  inconveniences.  It  would  swell  the  record 
to  the  hindrance  of  the  service,  perplex  the 
business  of  the  court  by  presenting  many  useless 
questions  for  interlocutory  decision,  and  would 

1  Starkie,  p.  480. 


342  OP    EVIDENCE. 

CHAPTER  be  unjust  to  the  prisoner,  by  calling  upon  him 
_  unexpectedly,  to  answer  at  once  for  any  action 
of  his  life.  This  rule  is  peculiarly  forcible  in, 
and  applicable  to,  criminal  prosecutions;  and 
therefore  all  manner  of  evidence  which  is  foreign 
to  the  point  in  issue,  ought  to  be  rejected. 

Plain  as  this  rule  is,  there  is  still  sometimes  a 
difficulty  to  ascertain  what  particular  evidence 
is  applicable  to  the  questions  to  be  decided. 
The  definition  given  of  evidence  must  be  refer- 
red to,  and  that  will  generally,  if  properly  con- 
sidered, aid  the  court  to  determine.  Circum- 
stances which  have  not  an  immediate  tendency 
to  prove  the  point  in  issue  may  have  an  indirect 
or  consequential  tendency  to  that  effect,  and 
should  therefore  be  admitted  whenever  the  con- 
sequence is  made  apparent. 

It  may  be  proper,  too,  to  permit  an  inquiry 
into  other  facts  than  those  charged,  because  it 
may  be  shown  that  they  have  a  bearing  on  the 
questions  before  the  court,  and  constitute  pre- 
sumptive proofs — whereas  without  such  a  con- 
sequence the  inquiry  would  be  altogether  irrele- 
vant— so  a  question  upon  a  cross-examination 
may  be  rendered  necessary,  which  on  the  exam- 
ination in  chief  was  decidedly  improper. 

The  crime  of  desertion,  is  one  depending  upon 
intention  not  to  return,  and  therefore  any  fact 
connected  with  the  absence  of  the  prisoner  may 
be  inquired  into,  in  order  to  ascertain  the  exist- 
ence or  non-existence  of  such  intention.  But 
this  evidence  must  only  be  received  for  this  pur- 
pose, and  cannot  be  permitted  to  operate  at  all 
to  determine  the  degree  or  nature  of  punish- 
ment, unless  the  prisoner  be  expressly  charged 


OF    EVIDENCE.  343 

with  the  commission  of  such  act  or  acts  as  an     CHAPTER 
offence  or  crime,  and  be  placed  on  trial  for  the        xvf- 
same. 

It  is  not  allowable  to  show  that  the  prisoner  Not  allowed  to 
has  a  general  disposition  to  commit  the  same  dfep^ifuo*' 
kind  of  offence  as  that  charged  against  him ;  as  SS™  office! 
that  would  be  to  some  extent  substituting  an 
opinion  for  a  fact,  and  raise  an  issue  other  than 
the  true  one  for  the  court's  determination. 
Thus  in  a  prosecution  for  an  infamous  crime,  an 
admission  by  the  prisoner  that  he  had  commit- 
ted such  an  offence  at  another  time,  and  had  a 
tendency  to  such  practices,  ought  not  to  be  ad- 
mitted.1 But  there  are  particular  offences  or 
crimes,  in  which  knowledge  or  intention  on  the 
part  of  the  prisoner  is  necessary  to  conviction, 
and  therefore  the  proof  of  similar  transactions 
or  acts,  or  previous  declarations,  is  admissible. 
For  instance,  on  an  indictment  for  uttering  a 
bank  note,  knowing  it  to  be  forged,  proof  that 
the  prisoner  had  passed  other  forged  notes  of 
the  same  kind,  is  evidence  that  he  knew  the 
note  in  question  to  be  forged.  And  on  a  prose- 
cution for  uttering  counterfeit  money,  the  fact  of 
the  prisoner  having  other  counterfeit  money 
upon  him,  or  of  his  having  uttered  other  pieces 
of  money  of  the  same  kind,  is  evidence  of  his 
having  known  that  the  money  which  he  uttered 
was  counterfeit.  Such  evidence  it  must  be  ap- 
parent is  very  material,  for  the  gist  of  the  of- 
fence charged  upon  the  prisoner  is  that  he  did 
act  with  knowledge,  and  it  could  not  often  be  as- 
certained, under  what  circumstances  the  utter- 
ing took  place,  whether  from  ignorance  or  with 

1  Phillips,  p.  136. 


344 


OP   EVIDENCE. 


CHAPTER 
XVI. 


Plea  of  justifi 
cation  or  eicus« 
— Contemporfcr 
neous  conduct. 


* 


Prisoner  may 
prove  charac- 
ter. 


intention  to  commit  a  fraud,  without  inquiring 
into  the  demeanor  of  the  prisoner  in  the  course 
of  other  transactions.  But  this  kind  of  evidence, 
whatever  weight  it  may  have,  is  to  be  received 
only  as  of  another  transaction,  not  as  evidence 
of  another  offence.  The  same  description  of  evi- 
dence is  constantly  admitted  in  trials  for  mur- 
der ;  in  which  previous  resentments,  menaces,  or 
threats  against  the  deceased  are  evidence  of  the 
prisoner's  malice.1 

Under  the  plea  of  not  guilty  (which  puts  in 
issue  all  material  parts  of  the  charge),  the  pris- 
oner may  give  in  evidence  any  matter  of  justifi- 
cation, excuse,  or  extenuation.  And  if  other 
acts  besides  those,  the  subject  of  the  charge, 
have  been  proved  against  him,  in  order  to  show 
his  design  in  the  affair,  he  will  be  permitted  to 
explain  those  parts  of  his  conduct,  and  for  that 
purpose  may  give  in  evidence,  other  contempora- 
neous particulars  of  his  conduct  which  show 
that  he  had  a  different  design  from  that  imputed 
to  him.  The  limitation,  that  the  particulars  of- 
fered in  evidence  by  the  prisoner  ought  to  be 
contemporaneous  with  those  proved  on  the  other 
side,  or  at  least  confined  within  the  same  limits 
to  which  the  evidence  on  the  part  of  the  prose- 
cution is  subject,  is  founded  upon  the  propriety 
of  not  allowing  the  prisoner  the  whole  range  of 
his  life,  during  which  his  character  and  designs 
may  have  undergone  a  complete  change. 

The  prisoner  is  allowed  also  to  call  witnesses 
to  prove  his  character  ;  but  then  it  must  be  un- 
derstood that  character  unconnected  with  the 
charge  cannot  be  admitted  as  evidence  to  infln- 

1  Phillips,  p.  137. 


OF    EVIDENCE.  345 

ence  the  finding  of  the  court.     General  charac-     CHAPTER 
ter  thus  presented  for  the  notice  of  the  court        XVI' 
may  be  of  advantage  by  modifying  the  punish-    . 
ment  to  be  decreed  by  the  court,  or  presenting 
the  case  to  the  reviewing  authority  as  one  in 
which  mercy  may  be  exercised,  and  thus  pro- 
cure pardon  for  the  offender,  or  mitigation  of  the 
sentence. 

Courts-martial  will  always  permit  the  pris-  of  the  advan- 

•f  t '  tages  and  object 

oner  to  present  evidence  of  character,  and  do  of  such  evi- 

dence. 

not  require  that  it  should  bear  analogy,  and 
have  reference  to  the  charge  in  issue,  and  such 
testimony  when  the  evidence  against  him  is 
doubtful  may  be  sufficient  to  warrant  an  ac- 
quittal. 

Evidence  as  to  the  general  character  of  a  pris- 
oner is  submitted  to  the  court  after  the  defence, 
by  testimony,  has  been  made ;  though  questions 
tending  to  elicit  such  may  be  made  frequently  in 
the  course  of  the  investigation  by  the  accused. 

It  must  be  apparent,  that  wherever  intention 
is  a  principal  ingredient  in  the  offence  charged, 
depending  too  upon  presumptive  proof,  evidence 
as  to  character  which  applies  directly  to  the 
nature  of  the  accusation  may  be  exceedingly  im- 
portant. Therefore  when  evidence  of  a  prison- 
er's character,  given  by  credible  witnesses,  is  of 
a  warm  and  affectionate  description,  it  should 
be  received  as  going  far  in  favor  of  the  prisoner. 
Expressions  of  good  will  towards  the  deceased, 
by  one  accused  of  murder,  are  always  consider- 
ed of  great  importance,  as  going  to  show  the  ab- 
sence of  malice,  and  that  therefore  the  intention 
was  not  what  the  charge  imputes.  A  general 
character  for  sobriety,  honesty,  and  good  tem- 

44 


346 


OF    EVIDENCE. 


CHAPTER     per,  is  certainly  to  be  allowed  great  influence,  tc 

XVI>        operate  against  the  presumption  of  malice  and 

premeditation  which  a  crime  of  such  magnitude 
necessarily  supposes ;  and  in  all  similar  cases 
the  like  principle  applies, 
or  particular         go  particular  characteristics  of  a  prisoner  may 

cnsrfl,c  wins  tics.  J 

be  given  in  evidence,  to  rebut  a  charge  of  crime, 
10  which  the  testimony  offered  is  analogous  in 
character.  One  charged  with  theft,  would  very 
naturally  prefer  evidence  of  character  for  hon- 
esty, and  which  would,  if  satisfactorily  set  forth, 
be  entitled  to  great  weight.  And  so  a  charge 
which  should  impugn  the  courage  of  a  soldier, 
would  be  much  weakened  by  evidence  of  the 
former  bravery  and  resolution  of  the  accused. 
But  in  all  cases  where  particular  traits  of  cha- 
racter are  shown,  care  must  be  observed,  in 
order  that  the  merit  or  excellence  of  the  per- 
sonal qualities  of  the  prisoner  be  not  confounded 
with  their  applicability  as  proof;  for  it  would  be 
very  irrelevant  to  the  issue  when  considering  a 
charge  of  theft,  to  allow  character  of  courage  in 
the  balance  of  proof;  and  equally  so,  would  evi- 
dence of  honesty  be,  when  deliberating  upon  a 
charge  of  cowardice.  These  qualities  or  dispo- 
sitions of  men  are  not  repugnant  to  the  belief  of 
particular  crimes,  and  no  doubt,  are  frequently 
and  reciprocally  existent  with  persons  who  com- 
mit the  offences  above  referred  to. 
inquiry  to  be  as  Whenever  the  prisoner  is  permitted  to  call 

to  the  general  t  A  . 

character.  witnesses  to  general  character,  and  in  every 
case  of  doubt,  proof  of  good  character  will  be 
entitled  to  great  weight,  the  inquiry  must  be 
always  as  to  the  general  character,  for  it  is  the 
general  character  alone  which  can  afford,  or 


OF    EVIDENCE. 


347 


CHAPTER 
XVI. 


raise  a  presumption  that  the  person  who  had 
maintained  a  fair  reputation  down  to  a  certain 
period,  would  not  then  begin  to  act  a  dishonest 
or  unworthy  part.  It  frequently  happens  that 
witnesses,  speaking  of  the  general  opinion  of  the 
prisoner's  character,  state  their  own  -personal 
experience  and  opinion  of  his  honesty ;  but  when 
this  statement  is  admitted,  it  is  rather  from  favor 
to  the  prisoner  than  strictly  as  evidence  of  gene- 
ral character.1 

It  has  been  usual,  says  a  very  sensible  writer, 
to  treat  the  good  character  of  the  party  accused 
as  evidence  to  be  taken  into  consideration  only 
in  doubtful  cases.  Juries  have  generally  been 
told  that  where  the  facts  proved  are  such  as  to 
satisfy  their  minds  of  the  guilt  of  the  prisoner, 
character,  however  excellent,  is  no  subject  for 
their  consideration ;  but  that  when  they  enter- 
tain any  doubt  of  the  guilt  of  the  party,  they 
may  properly  turn  their  attention  to  the  good 
character  which  he  has  received.  It  is,  how- 
ever, submitted  with  deference,  that  the  good  Evidence  of 

,  ,  .         character,  how 

character  of  the  party  accused,  satisfactorily  to  be  consider- 
established  by  competent  witnesses,  is  an  in- 
gredient which  ought  always  to  be  submitted  to 
the  consideration  of  the  jury,  together  with  the 
other  facts  and  circumstances  of  the  case.  The 
nature  of  the  charge,  and  the  evidence  by  which 
it  is  supported,  will  often  render  such  ingredient 
of  little  or  no  avail ;  but  the  more  correct  course 
seems  to  be,  not  to  withdraw  it  from  considera- 
tion, but  to  leave  the  jury  to  form  their  conclu- 
sion upon  the  whole  of  the  evidence,  whether  an 
individual,  whose  character  was  previously  un- 

1  1  Phill.  Ev. 


348 


OF    EVIDENCE. 


CHAPTER     blemished,  has  or  has  not  committed  the  partic- 
XVI>        ular  crime  for  which  he  has  been  called  upon  to 


answer.1     (2  jRuss.  703.) 
Bad  character        The  prosecutor  cannot  enter  into  evidence  of 

of  prisoner  not  * 

to  be  given  in  the  defendant's  bad  character,  unless  the  latter 

evidence,  un-  •_«.«•  -,  „. 

less  —nor  par-    enable  him  to  do  so,  by  calling  witnesses  in  sup- 

ticular  facts.  J 

port  of  his  good  character,  and  even  then  the 

prosecutor  cannot  examine  as  to  particular  facts.2 

NO  evidence  to       As  the  court  is  sworn  to  try  and  determine 

contradict  the  *   '  i_          . 

record.  the  matter  before  them,  that  is  the  matter  in 

issue  between  the  parties,  no  evidence  need  be 

•  given  to  prove  any  points  which  are  admitted 

on  record,  and  none  can  be  received  to  contra- 
dict the  record.3 

Evidence  to          There  is  a  description  of  evidence  which  has 

prove  conspi- 

nef-  been  acknowledged  by  high  judicial  authority  to 

be  admissible  to  prove  particular  offences,  which, 
as  a  general  rule,  might  not  be  otherwise  univer- 
sally received.  This  relates  to  conspiracy,  and 
is,  therefore,  to  be  a  rule  for  the  observance  of 
military  courts  in  trials  for  mutiny  and  sedition, 
to  which  it  bears  a  striking  analogy. 

Number  neces-       With  regard  to  conspiracies  in  general,  it  is  to 

eary  for  a  con-  °  ° 

spiracy.  Muti-  be  observed,  that  the  nature  of  the  offence  re- 

ny  and  sedition          . 

may  begin  and  quires  that  more  than  one  person  should  be  con- 
end  with  one.        *-  A  . 

cerned  in  its  commission.4  And  so  in  mutiny 
and  sedition,  two  or  more  persons  are  frequently 
parties  thereto ;  though  it  does  not  follow  that  it 
requires  more  than  one  to  commit  the  offence ; — 
it  may  begin  and  end  with  one  individual.  "  It 
is  not  necessarily  an  aggregate  offence,  commit- 
ted by  many  individuals;  for  it  may  originate 
and  conclude  with  a  single  person, — and  be 

i  Roscoe's  Grim.  Ev.,  72,  73.         2  Ibid.,  73. 

'  1  Starkie,  387.  4  Roscoe's  Grim.  Ev.,  p.  313 


OF    EVIDENCE. 


as  complete  with  one  actor  in  it,  as  one  thou-     CHAPTER 
sand."1  XVI- 


The  acts  and  declarations  of  the  prisoner  him-  Declarations  by 

prisoner  on  for 

self,  on  former  occasions,  may  not  only  be  ad-  mer  occasions. 
mitted,  when  referable  to  the  point  in  issue,  but 
also  the  acts  and  declarations  of  other  persons 
with  whom  he  has  conspired,  may,  if  referable 
to  the  issue,  be  given  against  him  in  evidence. 

In  prosecutions  for  conspiracies,  it  is  an  estab-  Act  done  by 

r   ,       A       1,1  i  i  one  conspirator 

Ashed  rule,  that  where  several  persons  are  prov-  considered  the 
ed  to  have  combined  together  for  the  same  ille- 
gal purpose,  any  act  done  by  one  of  the  party,  in 
pursuance  of  the  original  concerted  plan,  and 
with  reference  to .  the  common  object,  is,  in  the 
contemplation  of  law,  as  well  as  in  sound  rea- 
son, the  actvof  the  whole  party;  and,  therefore, 
the  proof  of  the  act  will  be  evidence  against  any 
of  the  others,  who  were  engaged  in  the  same 
general  conspiracy,  without  regard  to  the  ques- 
tion, whether  the  prisoner  is  proved  to  have 
been  concerned  in  the  particular  transaction, — 
for  it  is  evidence,  as  acts  connected  with,  and  in 
conformity  with,  his  own  acts.  If,  therefore,  on 
the  trial  of  a  charge  of  mutiny  against  several 
persons,  in  assembling  unlawfully  for  the  pur- 
pose of  exciting  discontent  or  disaffection,  the 
material  points  for  the  consideration  of  the  court 
are,  the  general  character  and  intention  of  the  as- 
sembly, a'nd  the  particular  case  of  the  defendant 
as  connected  with  that  general  character.  And 
it  is  relevant  to  shoW  in  evidence  resolutions  pro- 
posed by  one  of  the  defendants  at  a  meeting  at 
another  place  or  time,  for  the  same  professed 
object  and  purpose  as  were  avowed  at  the  meet- 

1  Samuel,  Law  Military,  p.  257,  and  Hough,  68. 


350  OP    EVIDENCE. 

CHAPTER     ing  in  question.     For  in  a  question  of  intention, 
*YI>        it  is  most  clearly  relevant  to  show,  against  that 
individual,  that  at  a  similar  meeting,  held  for  an 
object  professedly  similar,  such  matters  had  pass- 
ed under  his  immediate  auspices. 
Letters  and  Letters  and  writings,  also,  of  one  of  several 

writings  offered 

in  evidence  of  conspirators,  are  frequently  offered  in  evidence 

conspiracy.  .  *  * 

against  others. 

Papers  found  in  the  custody  of  the  prisoner 
are  admissible  in  evidence,  without  any  proof  of 
the  hand-writing  being  his. 

The  letters  or  writings  must  appear  to  have 
been  written  in  furtherance  of  the  conspiracy, 
and  not  as  a  mere  relation  of  a  past  transaction. 
"  Correspondence,"  said  Eyre,  C.  J.,  "  very  often 
makes  a  part  of  the  transaction ;  and  in  that 
case,  the  correspondence  of  one  who  is  a  party 
to  the  conspiracy,  would  undoubtedly  be  evi- 
dence— that  is,  a  correspondence  in  furtherance 
of  the  plot ;  but  a  correspondence  of  a  private 
nature,  a  mere  relation  of  what  has  been  done, 
appears  a  different  thing." — Hardy's  Case,  24 
How.  St.  Tr.  452,  475. 

It  is  not  necessary,  in  order  to  render  the  let- 
ter of  one  of  several  conspirators  evidence,  that 
it  ever  should  have  reached  the  hands  of  the 
person  to  whom  it  was  addressed.  Letters  thus 
intercepted  have  been  allowed  to  be  read  in  evi- 
dence, on  the  ground  that  it  was  a  letter  from 
one  conspirator  to  another  conspirator,  and  hav- 
ing relation  to  the  conspiracy,  the  tendency  and 
nature  of  which  it  contributed  to  show. 
Time  and  place  With  regard  to  the  time  and  place  of  finding 

of  finding  such  .  .  . 

writings.          such  letters  or  writings,  it  is  obvious  that  they 
ought  to  be  such  as  to  afford  presumption  that 


OF    EVIDENCE.  351 

• 

the  documents  are  genuine.  Where  letters  have  CHAPTER 
been  intercepted  after  the  apprehension  of  the  XVI- 
prisoner,  they  have  been  disallowed  as  evidence, 
on  the  ground  that  they  had  never  been  in  the 
custody  of  the  prisoner,  or  any  way  adopted  by 
him — or  that  there  was  nothing  to  show  the  ex- 
istence of  the  writings  previous  to  the  prisoner's 
apprehension,  or  that  he  was  a  party  to  them. 
But  if  there  be  a  presumption  of  the  previous 
existence  of  the  writing  it  will  then  be  admis- 
sible. 

Where  letters  and  writings  are  offered  in 
evidence,  in  these  cases,  it  must  appear  that 
they  are  connected  with  the  objects  of  the  con- 
spiracy, and  that  they  are  not  merely  the  spe- 
culative opinions  of  the  party  by  whom  they 
were  written.  But  if  they  be  so  connected, 
then,  though  they  may  never  have  been  publish- 
ed, they  are  admissible  in  evidence. 

Not  only  are  the  acts  and  the  written  letters  verbal  aeciar- 
and  papers,  of  one  of  several  persons  engaged  in  bie?"8  adnussi 
the  same  conspiracy,  evidence  against  the  others, 
done  or  written  in  furtherance  of  the  common 
purpose,  but  his  verbal  declarations  are  equally 
admissible  under  similar  restrictions.  Any  dec- 
larations made  by  one  of  the  party  in  pursuance 
of  the  common  object  of  the  conspiracy,  are 
evidence  against  the  rest  of  the  party,  who  are 
as  much  responsible  for  all  that  has  been  said  or 
done  by  their  associates  in  carrying  into  effect 
the  concerted  plan,  as  if  it  had  been  pronounced 
by  their  own  voice,  or  executed  by  their  own 
hand.  These  declarations  are  of  the  nature  of 
acts  ;  they  are  in  reality  acts  done  by  the  party, 
and  generally  they  are  far  more  mischievous 


352 


OF    EVIDENCE. 


CHAPTER 
XVI. 


Acts  and  de- 
clarations ad- 
missible in  evi- 
dence for  the 
prisoner. 


Acts  and  de- 
clarations in 
favor  of  pris- 
oner, to  be  con- 
nected in  sub- 
ject and  time, 
&c. 


Witness  must 
speak  to  facts. 
Opinions  on 
questions  of 
science,  &c. 


than  acts  which  consist  only  in  corporal  agency. 
All  consultations,  therefore,  carried  on  by  one 
conspirator  relative  to  the  general  design,  and  all 
conversations  in  his  presence,  are  evidence 
against  another  conspirator,  though  absent. 
The  effect  of  such  evidence  must  depend  on  a 
variety  of  circumstances,  such  as  whether  the 
party  was  attending  to  the  conversation,  and 
whether  he  approved  or  disapproved — still  such 
conversations  are  admissible  in  evidence. 

Evidence  of  other  acts  and  declarations  of 
the  prisoner,  as  it  is  admissible  for  the  prosecu- 
tion under  the  restrictions  above  stated,  so  it  is 
also  admissible  on  behalf  of  the  prisoner.  For 
the  design  and  intention  of  a  party,  at  a  particu- 
lar time,  are  best  explained  by  a  complete  view 
of  every  part  of  his  conduct  at  that  time,  and 
not  merely  from  the  proof  of  a  single  and  insu- 
lated act  or  declaration. 

The  acts  and  declarations  of  a  prisoner,  given 
in  evidence  in  his  favor,  ought  to  be  connected 
both  in  point  of  subject  matter,  and  of  time, 
with  the  acts  or  declarations  proved  against 
him.1 

In  general  the  opinion  of  a  witness  is  not 
evidence :  he  must  speak  to  facts,  and  these  the 
court  deliberates  upon  and  applies  by  its  own 
judgment.  On  questions  of  science  or  art,  how- 
ever, it  is  allowed  to  persons  of  skill  to  speak, 
not  only  to  facts,  but  to  give  their  opinions  in 
evidence.  Evidence  of  character  is  founded  on 
opinion,  and  the  opinion  of  a  medical  man  is 
evidence  as  to  the  state  or  condition  of  a  pa- 
tient— and  in  such  cases  he  would  be  questioned 

i  Roscoe's  Crim.  Ev.,  pp.  59  to  66. 


OP    EVIDENCE.  353 

as   to   the  best  of  his   knowledge,  opinion,  or     CHAPTER 
judgment.     In  all  cases  where  there  may  exist        XVI- 
any  doubt  as  to  the  propriety  of  requiring  the 
opinion  of   a  witness,   the  first   consideration 
should  be,  is  the  opinion  asked  for  one  of  mere 
art,  or  technical,  or  scientific  knowledge,  sepa- 
rate from  the  question  in  issue — or  is  it  declara- 
tory of  the  matter  under  trial  1    If  the  latter,  of 
course  it  cannot  be  received  as  that  is  the  very 
point  to  be  decided  by  the  court. 

It  is  said,  that  "  every  question  is  admissible 
of  a  military  man,  where  it  is  founded  on  local 
knowledge  or  circumstances  which  are  not  with- 
in the  reach  of  all  the  members  of  the  court ; 
but  where  it  is  merely  a  question  of  military 
science,  to  affect  the  officer  who  is  undergoing 
his  trial,  it  is  obvious  that  the  court  is  met  for 
no  other  purpose  but  to  try  that ;  and  that  they 
have  before  them  the  facts  in  evidence  on  which 
they  are  to  ground  their  conclusions."  In  cases 
affecting  the  conduct  of  the  accused,  either  as  to 
deportment  or  language,  it  is  perfectly  proper 
and  often  necessary,  to  require  a  witness  to  de- 
clare his  opinion,  because  such  opinion  may  be 
derived  from  the  impression  of  a  combination  of 
circumstances  occurring  at  the  time  referred  to, 
difficult  if  not  impossible  fully  to  impart  to  the 
court ;  but  it  would  be  manifestly  improper  to 
draw  the  attention  of  a  witness  to  facts,  either 
derived  from  his  own  testimony  or  that  of  an- 
other witness,  and  to  ask  his  opinion  as  to  their 
accordance  with  military  discipline  or  usage,  be- 
cause the  court,  being  in  possession  of  facts,  are 
the  only  proper  judges  of  their  tendency.1 

1  Simmons,  p.  367. 
45 


354 


OF    EVIDENCE. 


CHAPTER 
XVI. 


Affirmative  of 
the  issue  to  be 
proved. 


Exceptions  to 
the  rale. 


A  court  should  never  require  the  opinion  of  a 
witness,  when,  by  the  investigation  of  facts,  they 
would  be  themselves  competent  to  form  a  cor- 
rect judgment.  A  ship-builder  has  been  admit- 
ted to  prove  the  sea-worthiness  of  a  ship,  by  his 
opinion  founded  on  facts  stated  by  others.  So 
an  artillery  officer  might  be  allowed  to  give  an 
opinion  as  to  the  probable  effect  of  cannon,  if  di- 
rected as  assumed  ;  and  in  all  questions  of  opin- 
ion, touching  matters  of  art  or  science,  they  are 
allowed,  if  they  are  not  of  a  nature  to  be  pre- 
sumably known  to  each  member  of  the  court. 

It  is  unnecessary  to  proceed  with  further  re- 
marks, illustrative  of  this  branch  of  the  subject ; 
in  every  instance  in  which  opinions  may  be  re- 
quired, the  nature  of  the  case  will,  generally,  be 
sufficient  to  guide  the  court ;  and  a  reference  to 
the  principles  by  which  this  description  of  evi 
dence  is  limited  or  regulated,  as  stated  in  the 
preceding  pages,  will  aid  to  a  correct  decision. 

Secondly. — The  affirmative  of  tJie  issue  is  to 
be  proved. 

The  difficulty,  and  at  times  the  impossibility 
of  proving  a  negative,  as  well  as  the  maxim  of 
law,  which  declares  that  every  man  is  to  be  pre- 
sumed innocent  until  the  contrary  be  shown, 
has  made  the  rule  now  stated,  of  essential  and 
necessary  observance.  There  are,  however,  ex- 
ceptions to  the  observance  of  this  rule,  growing 
out  of  policy  or  necessity ;  but  so  few,  that  an 
accused  person  is  not  likely  to  suffer  from  the 
misapplication  of  them. 

To  elucidate  the  exceptions,  it  will  only  be 
necessary  to  refer  to  the  cases  cited  in  the  books 
on  evidence,  and  which  present  the  principle  so 


OP    EVIDENCE.  355 

( 

clearly,  that  military  courts  may  easily  apply  it  CHAPTER 
whenever  necessary.  Thus,  in  an  action  on  the  XYI- 
game  laws,  though  the  plaintiff  must  aver,  in 
order  to  bring  the  defendant  within  the  act,  that, 
he  was  not  duly  qualified ;  yet  it  is  not  neces- 
sary to  disprove  his  qualifications  ;  but  it  will  be 
for  the  defendant,  if  he  can,  to  prove  himself 
qualified.  The  proof  here  for  the  defendant 
would  be  positive,  as  the  knowledge  of  such 
qualification  is  peculiarly  within  the  party  him- 
self ;  but  the  prosecution  would  most  probably 
have  no  means  of  proving,  negatively,  the  dis- 
qualification.1 

But  where  one  person  charges  another  with  a 
culpable  breach  of  duty,  the  rule  is,  that  he  who 
makes  the  charge,  is  bound  to  prove  it,  though  it 
may  involve  a  negative  ;  for  it  is  one  of  the  first 
principles  of  justice,  not  to  presume  that  a  per- 
son has  acted  illegally,  till  the  contrary  be 
proved.  It  is  a  general  rule  of  evidence,  that  General  rule  of 
the  burden  of  proof  lies  on  the  person  who  has 
to  support  his  case  by  proof  of  a  fact,  of  which 
he  is  supposed  to  be  cognizant.2  So  a  party 
who  pleads  his  infancy,  must  prove  it.3  That 
is,  although  in  general,  it  is  necessary  for  a  party 
to  prove  all  the  material  facts  which  he  alleges, 
yet  where  the  defendant  pleads  a  fact  within  his 
own  knowledge  in  discharge  of  himself,  the  bur- 
den of  proof  lies  upon  the  defendant — not  upon 
the  plaintiff. 

This  rule  is  not  founded  on  any  presumption 
in  law  in  favor  of  the  party,  but  is  merely  a  rule 
of  practice  and  convenience ;  and  it  ceases  in  all 
cases  where  the  presumption  of  law  is  thrown 

i  1  Phillips,  149.  2  Ibid.,  151.  3  i  Starkie,  377. 


OF    EVIDENCE. 


CHAPTER     into  the  other  scale.     So  it  may,  in  general  terms 

_  _  be  said,  that  whenever  the  negative  does  not  ad- 

mit of  direct  proof,  or  the  facts  lie  more  imme- 

diately within  the  knowledge  of  the  defendant, 

he  is  put  to  his  proof  of  the  affirmative. 

Thirdly.  —  The  best  evidence  to  be  produced  of 
which  the  nature  of  the  case  icill  admit. 

This  is  a  primary  and  signal  rule  of  evidence, 
for  if  the  best  evidence  be  not  produced,  it  af- 
fords a  presumption  that  it  would  make  against 
the  party  neglecting  to  produce  it.1  The  true 
meaning  of  this  rule,  is  not  that  courts  of  law 
require  the  strongest  possible  assurance  of  the 
matter  in  question,  but  that  no  evidence  shall  be 
given,  which  from  the  nature  of  the  thing  sup- 
poses still  greater  evidence  behind  in  the  party's 
possession  or  power  ;  for  such  evidence  is  alto- 
gether insufficient  and  proves  nothing,  but  car- 
ries with  it,  a  presumption  contrary  to  the  inten- 
tion for  which  it  is  produced.  Thus  if  a  party 
offer  a  copy  of  a  will  or  deed,  where  he  is  able 
to  produce  the  original,  this  raises  a  presump- 
tion that  there  is  something  in  the  deed  or  will, 
which  if  produced,  would  make  against  the 
party  ;  and  therefore  the  copy,  in  such  a  case,  is 
not  evidence.  But  if  he  prove  the  original  will 
or  deed  to  be  in  the  hands  of  the  adverse  party, 
to  whom  he  has  given  notice  to  produce  it,  or 
that  the  original  has  been  destroyed  without  his 
default,  no  such  presumption  can  reasonably  be 
made,  and  a  copy  will  be  admitted,  because  then 
such  copy  is  the  best  evidence  that  can  be  pro- 
duced. A  witness  cannot  testify  as  to  the  con- 

.1  »  Gilbert,  Ev.,  p.  3. 


OF    EVIDENCE.  357 


tents  of  a  paper  in  his  possession  ;  it  should  be     CHAPTER 
produced. 


Now,  although  the  best  evidence  which  the  Accumulation 
case  admits  of,  must  be  produced  in  evidence, 
still  it  does  not  follow,  that  the  law  requires  the  8 
strongest  possible  assurance  of  a  fact;  on  the 
contrary,  if  the  evidence  to  a  fact  is  of  the-  best 
possible  kind,  the  mere  accumulation  of  identi- 
cal testimony  is  unnecessary.  So  if  a  transac- 
tion should  be  witnessed  by  twenty  persons,  one, 
or  two,  or  three,  would  be  as  sufficient  to  prove 
it  as  the  entire  twenty  ;  and  therefore  it  is,  that 
one  credible  witness  is  sufficient  to  prove  a  fact, 
except  in  cases  where  the  law  has  designated  a 
different  rule. 

Offences  are  at  times  committed  with  such 
privacy,  that  it  is  impossible  to  prove  them  other-  °  omPlamaat- 
wise  than  by  the  testimony  of  the  complainant 
or  the  party  injured ;  such  evidence  becomes 
then  of  the  best  possible  kind  of  which  the  case 
admits,  and  is  consequently  received ;  and  where 
no  doubt  of  the  credibility  of  the  witness  exists, 
is  considered  sufficient  to  warrant  a  conviction. 

This  rule  is  easily  illustrated  by  supposing 
the  case  of  a  soldier,  or  officer,  entering  the  quar- 
ters of  his  superior  or  commanding  officer,  and 
there,  no  other  persons  being  present,  using  op- 
probrious and  threatening  language  to  him,  or 
behaving  in  a  violent  and  mutinous  manner. 
Such  a  case  has  occurred,'  and  the  offender  been 
dismissed  the  service.1 

In  reference  to  this  particular  part  of  the  sub- 
ject, it  is  to  be  remarked,  that  in  deciding  upon 

1  See  case  of  Lieutenant  Thackary,  R.  N.,  reported  in  2 
McArthur,  56. 


358 


OP    EVIDENCE. 


CHAPTER 
ZY1. 

Satisfactory  ev- 
idence is  alone 
required,  not 
dependent  upon 
number  of  wit- 
nesses. 


Primary  and 
secondary  evi- 
dence. 


Notice  to  pro- 
dace. 


the  effect  of  evidence,  the  question  is,  not  by 
how  many  witnesses  a  fact  may  have  been 
proved,  but  whether  it  has  been  proved  satisfac- 
torily, and  so  as  to  convince  the  understanding. 
The  number  of  witnesses,  is  not  always  conclu- 
sive in  matters  of  proof,  more  than  the  number 
of  arguments  on  a  subject  of  reasoning.  A  wit- 
ness cannot  be  suspected  merely  because  he 
stands  alone,  for  it  is  clear  that  the  testimony  of 
a  single  witness  may  be  so  clear,  full  and  free 
from  all  suspicion  and  bias,  as  to  convince  the 
most  doubting  and  scrupulous;  while,  on  the 
other  hand,  many  witnesses  may  declare  the 
same  fact,  and  yet  none  be  worthy  of  credit.  It 
is  the  character  of  the  witnesses,  and  the  char- 
acter of  their  evidence  that  ought  to  prevail ; 
not  their  number. 

The  best  evidence  is  distinguished  as  primary 
evidence,  and  the  inferior  as  secondary  evidence. 

Secondary  evidence  is  admissible,  where  the 
primary  evidence,  being  documentary,  is  either 
lost  or  destroyed,  or  where  it  is  in  the  hands  of 
the  opposite  party,  or  of  his  privy  or  agent ;  or 
in  the  hands  of  a  person  privileged  from  produc- 
ing it,  and  who,  upon  being  required  to  do  so, 
insists  upon  his  privilege  ;  or  where  in  cases  as 
in  tablets  let  into  walls,  it  is  impossible  to  pro- 
duce the  originals  in  court,  without  great  incon- 
venience. 

Where  a  document  is  in  the  hands  of  the 
other  party,  a  notice  to  produce  it  in  court  must 
be  given  to  him,  before  secondary  evidence  of  its 
contents  can  be  received. 

Where,  from  the  nature  of  the  prosecution, 
the  prisoner  must  be  aware  that  he  is  charged 


OF    EVIDENCE.  359 

HI 

with  the  possession  of  the  document  in  question,     CHAPTER 

a  notice  to  produce  it  is  unnecessary.     It  is  not  _    ^ . 

sufficient  to  dispense  with  notice  to  produce,  that 
the  party  in  possession  of  the  document  has  it 
with  him  in  court.  Nor  is  it  necessary  that  the  , 
notice  should  be  in  writing ;  and  in  order  to  ren- 
der it  effective,  the  notice  should  sufficiently 
point  out  the  document  required  to  be  produced. 

It  is  sufficient  to  serve  the  notice  either  upon 
the  prisoner  himself,  or  upon  his  counsel. 

The  only  consequence  of  giving  a  notice  to 
produce,  is  that  it  entitles  the  party  giving  it, 
after  proof  that  the  document  in  question  is  in 
the  hands  of  the  opposite  party,  or  his  agent,  to 
go  into  secondary  evidence  of  its  contents,  and 
does  not  authorize  any  inference  against  the 
party  failing  to  produce  it.  If  the  party  who 
calls  for  the  papers  inspects  them,  this  will  ren- 
der them  evidence  for  the  other  party ;  though 
it  is  otherwise,  if  he  merely  calls  for  them  with- 
out inspecting  them. 

A  due  degree  of  diligence  must  be  exercised  Diligence  to  b« 

used  in  looking 

in  looking  for  a  document  supposed  to  be  lost,  for  pap61"8  SUP- 

5  '    posed  to  be  lost. 

and  this  will  depend,  in  a  great  measure,  on  the 
importance  of  the  document.  In  the  case  of  a 
useless  document,  the  presumption  is,  that  it  has 
been  destroyed.  And  where  the  loss  of  a  paper 
may  almost  be  presumed,  very  slight  evidence 
of  such  loss  or  destruction  is  sufficient. 

Where  it  is  the  duty  of  a  party  in  possession 
of  a  document,  to  deposit  it  in  a  particular  place, 
and  it  is  not  found  in  that  place,  the  presump- 
tion is,  that  it  is  lost  or  destroyed.1 

And  in  respect  to  persons,  it  is  sufficient  to 

1  Roacoe'a  Crim.  Ev.,  7  to  12. 


360  OP   EVIDENCE. 

.*•  '  ^» 

CHAPTER     prove  that  they  acted  in  the  character  set  forth, 
XVI'        without    producing    their    appointments ;    and 


therefore  uPon  a  charge  of  disobedience  or  neg- 
city  of  others.  ject  of  or(jers  against  an  officer  or  a  soldier,  it  is 
sufficient  to  show  that  the  officer  giving  the 
order  had  previously,  in  the  knowledge  of  the 
accused  acted  in  the  capacity  alleged.  And  a 
prisoner  may  be  proved  a  soldier  by  showing 
that  he  received  pay  as  such,  and  acted  in  the 
capacity  of  one,  without  producing  or  proving 
his  enlistment. 
Proof  of  hand-  In  proving  the  handwriting,  the  evidence  of 

writing.  i  •    i  . 

third  persons  is  not  inferior  to  that  of  the  party 
himself.  Such  evidence  is  not  in  its  nature  in- 
ferior or  secondary,  and  though  it  may  generally 
be  true  that  a  writer  is  best  acquainted  with  his 
own  handwriting,  and  therefore  his  evidence 
will  generally  be  thought  the  most  satisfactory, 
yet  his  knowledge  is  acquired  precisely  by  the 
same  means,  as  the  knowledge  of  other  persons, 
who  have  been  in  the  habit  of  seeing  him  write, 
and  differs  not  so  much  in  kind"  as  in  degree. 
The  testimony  therefore  of  such  persons,  is  not 
of  a  secondary  species,  nor  does  it  give  reason 
to  suspect,  as  in  the  case  where  primary  evi- 
dence is  withheld,  that  the  fact  to  which  they 
speak  is  not  true.  If  the  evidence  of  third  per- 
sons be  admissible  to  prove  handwriting,  it 
seems  necessarily  to  follow  that  it  is  equally  ad- 
missible for  the  purpose  of  disproving  it — the 
question  of  genuine  or  not  genuine  being  the 
same  in  both  cases.1 

The  simplest  and  most  obvious  proof  of  hand- 
writing is  the  testimony  of  a  witness  who  saw 

1  Roscoe's  Crim.  Ev.,  5. 


OF    EVIDENCE.  361 

the  paper  or  signature  actually  written.  But  CHAPTER 
where  this  positive  proof  cannot  be  obtained,  the  XVI'  . 
best  evidence  of  which  the  case  admits,  is  the  in- 
formation of  witnesses  acquainted  with  the  sup- 
posed writer — who,  from  seeing  him  write,  have 
acquired  a  knowledge  of  his  handwriting ;  for 
in  every  person's  manner  of  writing  there  is  a 
prevailing  character  which  may  easily  be  dis- 
covered by  observation  ;  and  when  once  known, 
may  be  afterwards  applied  as  a  standard  to  try 
any  other  specimens  of  writing,  whose  genuine- 
ness is  disputed.  A  witness  may  therefore  be 
asked,  whether  he  has  seen  a  particular  person 
write,  and  afterwards,  whether  he  believes  the 
paper  in  dispute  to  be  his  handwriting.  This 
course  of  examination  involves  two  questions — 
the  first  of  identity,  as  whether  the  supposed 
writer  is  the  person  of  whom  the  witness  speaks 
— the  second,  of  comparison  in  the  mind  of  the 
witness,  between  the  general  standard  and  the 
writing  produced. 

This  kind  of  evidence,  like  all  probable  evi-  Opportunities 

i  j      «j         /•  -111  f  ,1        of  witness,  if  he 

dence,  admits  of  every  possible  degree,  from  the  has  seen  a  per. 
lowest  presumption  to  the  highest  certainty.     It  mayTpeak  to 
may  be  so  weak  as  to  be  utterly  unsafe  to  act  ting.  ar 
upon,  or  so  strong  as  to  produce  conviction  in 
the  mind  of  any  reasonable  man.     The  reliance 
therefore  to  be  placed  on  this  species  of  proof, 
must  depend  upon  the  qualities  of  perception  or 
intelligence  to  some  degree  of  the  witness,  of 
his  opportunities  and  kind,  of  observing  the  wri- 
ting of  the  supposed  writer — whether  he  has 
been  in  the  habit  of  seeing  him  write  daily,  and 
down  to  the  time  of  speaking,  or  whether  it  has 
been  of  but  casual  observation,  and  at  a  remote 

46 


362  OF    EVIDENCE. 

CHAPTER  period — or  at  intervals  when  the  specimens  sub 
XVI-  mitted  to  his  view,  from  hurry  or  other  cause 
were  not  a  fair  average  of  his  general  style  of 
writing.  It  is  certain,  that  under  such  varying 
circumstances,  the  impressions  on  the  mind  of 
the  witness  will  also  vary — be  very  clear  and 
perceptible,  or  faint  and  inaccurate.  But  what- 
ever weight  the  testimony  of  the  witness  may 
have,  it  is  an  established  rule  that  if  he  has 
seen  the  person  write,  he  will  be  competent  to 
speak  to  his  handwriting.1 

other  means  by  But  it  is  not  essential  to  the  proof  of  hand-' 
writing  may  be  writing,  that  the  witness  should  have  seen  the 
party  write.  There  are  various  other  ways  in 
which  he  may  have  become  acquainted  with  the 
handwriting.  If  a  witness  has  received  letters, 
purporting  to  have  been  written  by  a  particular 
person,  and  on  particular  business,  or  of  such  a 
nature  as  makes  it  probable,  that  they  were 
written  by  the  hand  from  which  they  profess  to 
come,  he  may  be  admitted  to  speak  to  that  per- 
son's handwriting ;  and  the  admissibility  of  the 
evidence  must  depend  upon  this,  whether  there 
is  good  reason  to  believe,  that  the  specimens,  from 
which  the  witness  has  derived  his  knowledge, 
were  written  by  the  supposed  writer  of  the  pa- 
per in  question.  And  in  general,  if  a  witness 
has  received  letters  from  the  party  in  question, 
and  has  acted  upon  them,  it  is  a  sufficient  ground 
for  stating  his  belief  as  to  the  handwriting. 
A  document  not  In  general  a  document  cannot  be  proved  by 

proved  by  com-  .  .  .  i         j 

parison  with     comparing  the   handwriting  with   other  hand- 

other  writing.  *  ° 

writing  of  the  same  party,  admitted  to  be  gen- 
uine ;  and  the  reason  is,  that  specimens  might  be 

i  1  Phillips'  Ev.,  364  to  366. 


OP    EVIDENCE.  363 

unfairly  selected  to  serve  the  purposes  of  the     CHAPTER 
party  producing  them,  and  therefore  not  exhibit-        XVI> 
ing  a  just  specimen  of  the  general  character  of 
the  handwriting.     The  rule  as  to  a  comparison 
of  handwriting  does  not  apply  to  the  court,  who 
may  compare  the  two  documents  together,  when 
they  are  properly  in  evidence,  and  from  that 
comparison  form  a  judgment  upon  the  genuine- 
ness  of  the   handwriting.     But  the  document  Comparison  tc 
with  which  the  comparison  is  made  must  be  one  papers  in  evi- 
already  in  evidence  in  the  case,  and  not  produ- 
ced merely  for  the  purpose  of  the  comparison — 
because  it  would  be  suspicious  to  select  a  docu- 
ment, unconnected  with  the  question,  to  be  put 
in,  merely  for  the  purpose  of  comparison  with 
one  already  before  the  court. 

In  the  case  of  ancient  documents,  where  it  is  of  ancient  wn. 
impossible  that  the  usual  proof  of  handwriting 
can  be  given,  the  rule  as  to  comparison  of  hands 
does  not  apply.  Thus  authentic  ancient  wri- 
tings may  be  put  into  the  hands  of  a  witness, 
and  he  may  be  asked  whether  upon  a  compar- 
ison of  those,  with  the  document  in  question,  he 
believes  the  latter  to  be  genuine. 

Whether  the  evidence  of  persons  skilled  in  or  persons 
detecting  forgeries   is   admissible,   in   order  to  tecting  forge- 
prove  that  a  particular  handwriting  is  not  gen- 
uine, is  a  point  not  well  settled.     It  has  been 
considered  as  a  question  of  art,  which  might  be 
answered  by  a  witness  of  skill  and  experience, 
and  therefore  admitted ;  but  in  other  cases  pre- 
cisely similar  evidence  has  been  rejected — again 
admitted — and  again  refused.     The  question  is 
therefore  left  open  for  an  established  rule.1 

1  1  Phillips'  Ev.,  364  to  373,  and  Roscoe's  Crim.  Ev.,  161  to  164. 


364  OF    EVIDENCE. 

CHAPTER         Fourthly. — The  substance  only  of  the  issue 
XVI>        need  be  proved. 


teuonhr  This  is  a  portion  of  the  subject  of  evidence 
aeed  be  proTed.  wnjch  caus  for  particular  attention  on  the  part 
of  members  of  courts-martial ;  not  only  because 
a  neglect  or  ignorance  of  its  true  meaning  might 
often  tend  to  the  escape  of  offenders,  but  might 
also  involve  a  defendant  in  the  consequences  of 
a  crime  with  which  he  was  not  legally  charged. 
It  is  therefore  necessary  to  understand,  what  va- 
riance in  the  proof  of  facts,  and  the  averments  of 
the  charge,  is  to  be  considered  immaterial  or  fatal. 
Substantive  It  is  a  distinction  which  runs  through  the 

crime  to  be  pro- 
ved, whole  criminal  law,  that  it  is  enough  to  prove 

so  much  of  the  indictment  as  shows  that  the  de- 
fendant has  committed  a  substantive  crime 
therein  specified;  but  the  offence  however  of 
which  he  is  convicted  must  be  of  the  same  class 
with  that  with  which  he  is  charged.1 

Under  this  rule  it  appears,  that  upon  an  in- 
dictment for  petit  treason,2  if  the  killing  with 
malice  was  proved,  but  not  with  such  circum- 
stances as  to  render  the  offence  petit  treason, 
the  prisoner  might  still  have  been  found  guilty 
of  wilful  murder  upon  that  indictment.  And  so 
upon  an  indictment  of  murder,  the  prisoner  may 
be  found  guilty  of  manslaughter — for  the  indict- 
ment contains  an  allegation  of  manslaughter. 
And  where  a  charge  alleges  that  the  defendant 
did,  and  caused  to  be  done  a  certain  act,  it  is 
sufficient  to  prove  either  the  one  or  the  other. 

'  Roscoe's  Grim.  Ev.,  74. 

2  By  the  English  laws  killing  under  certain  circumstances,  was 
called  petit  treason,  which  made  the  prisoner  liable  to  an  aggrava 
ted  penalty. 


OF    EVIDENCE.  365 

Where  the  intent  of  the  prisoner  furnishes  one     CHAPTER 
of  the  ingredients  in  the  offence,  and  several  in-        XVI> 
tents  are  laid  in  the  indictment,  each  of  which, 
together   with  the  act  done,  constitutes  an  of- 
fence, it  is  sufficient  to  prove  one  intent  only. 

But  where  a  person  or  a  thing,  necessary  to  Description  of 
be  mentioned  in  an  indictment,  is  described  with  * 
circumstances  of  greater  particularity  than  is  re- 
quisite, yet  those  circumstances  must  be  proved ; 
otherwise  it  would  not  appear  that  the  person 
or  thing  is  the  same  as  that  described  in  the  in- 
dictment. And  it  has  been  held  that  an  allega- 
tion in  an  indictment,  which  is  not  impertinent 
or  foreign  to  the  cause  must  be  proved,  though 
a  prosecution  for  the  same  offence  might  be  sup- 
ported without  such  allegation.  The  court  will 
be  more  strict  in  requiring  proof  of  the  matters 
alleged  in  a  criminal,  than  in  a  civil  case.1 

In  indictments  for  murder,  where  the  manner 
or  means  of  killing  is  proved  to  agree  in  sub- 
stance with  the  means  charged,  it  is  sufficient — 
as  where  the  indictment  is  for  killing  with  a 
dagger,  and  the  evidence  prove  a  killing  with  a 
staff — or  where  the  indictment  be  for  killing 
with  one  sort  of  poison,  and  the  proof  is  of  a 
different  kind,  the  indictment  is  maintained,  be- 
cause the  proof  of  the  instrument  is  not  abso- 
lutely necessary  to  the  proof  of  the  fact  itself. 
But  if  the  charge  is  for  poisoning,  and  the  death 
is  proved  to  have  been  caused  by  striking  or 
starving,  this  evidence  would  not  support  the 
indictment,  as  the  species  of  death  in  one  case 
is  totally  different  from  that  in  the  other.2 

If  an   indictment  charges  that  A.  gave  the 

-  Roscoe's  Grim.  Ev.,  75,  and  note.  *  1  Phil.,  157. 


366  OP   .EVIDENCE. 

CHAPTER  mortal  blow,  and  that  B.  and  C.  were  present 
XVI>  aiding  and  abetting,  &c. ;  but  the  evidence 
shows  that  B.  struck,  and  that  A.  and  C.  were 
present,  &c. ;  the  variance  is  not  material,  for 
the  stroke  is  adjudged  in  law  to  be  the  stroke 
of  every  one  of  them. 

General  ruia.  The  general  rule  is,  that  if  the  whole  of  an 
averment  may  be  struck  out  without  destroying 
the  cause  of  action,  it  will  not  be  necessary  to 
prove  it.1 

or  the  name  of       Whcrcever  the   name  of   the  party   against 

the  accused.  .  i 

whom  an  offence  is  committed,  it  is  a  matter  of 
description,  and  must  be  stated ; — and  if  the 
name  be  that  by  which  the  person  is  generally 
known  it  will  be  sufficient.  It  is  not  necessary 
that  there  should  be  any  addition  to  the  name ; 
and  where  a  person  has  a  name  of  dignity,  he 
ought  to  be  described  by  that  name,  and  as  it 
forms  part  of  the  name  itself,  and  is  not  an  ad- 
dition merely,  it  must  be  proved  as  laid. 

Where  a  name,  which  it  is  material  to  state, 
is  wrongly  spelled,  yet  if  it  be  idem  sonans  with 
that  proved,  it  is  sufficient.2 
Averment  of         it  is  a  rule  that  every  material  fact  which  is 

Vine. 

issuable  and  triable,  must  be  averred  to  have 
happened  at  a  certain  time.  However,  it  will 
not  be  necessary  to  prove  the  time  precisely  as 
laid,  unless  that  particular  time  is  material. 
Although  an  indictment,  not  alleging  any  time 
at  which  the  offence  was  committed  would  be 
bad,  yet  it  never,  was  necessary,  upon  an  indict- 
ment, to  prove  that  the  offence  was  committed 
upon  the  particular  day  charged. 

In   indictments  for  crime,  prosecuted  before 

ll  Phil.,  158,  and  Roscoe's  Crim.  Ev.,  83.        *  Roscoe,  81. 


OF    EVIDENCE.  367 

the  ordinary  courts  of  law,  it  is  sufficient,  in  CH/LPTER 
general,  to  prove  that  the  offence  was  committed  XVI- 
in  the  county  in  which  it  is  laid  to  have  been 
committed,  and  a  mistake  in  the  particular  place 
in  which  an  offence  is  laid,  will  not  be  material. 
And  although  the  offence  must  be  proved  to 
have  been  committed  in  the  county  where' the 
prisoner  is  tried,  yet  after  such  proof,  the  acts  of 
the  prisoner  in  any  other  county,  tending  to 
establish  the  charge  against  him,  are  admissible 
in  evidence. 

Before  courts-martial,  however,  the  distinc- 
tions noticed  above  are  not  necessary,  because 
such  courts  have  a  jurisdiction  of  military  offen- 
ces, co-extensive  with  the  country ;  and  a  crime 
committed  in  any  one  geographical  division,  or  de- 
partment of  the  army,  may  be  tried  in  any  other. 
The  question,  then,  of  jurisdiction  of  a  court-mar-  Jurisdiction  of 

.    ..      :r  _  ..  ,  .         courts  martial 

tial  does  not  depend  upon  the  place  where  the  does  not  depend 

.  rr       -i      upon  the  place 

crime  is  committed,  but  upon  the  person  onend-  where  the  crime 

.  ,      .  •       -I          -I  was  committed. 

ing,  and  the  particular  description  of  offence. 

Still  it  is  necessary,  in  framing  a  military  Place  to  be  sta. 
charge,  that  the  place  where  the  offence  is  sup-  charge. 
posed  to  have  been  committed,  should  be  laid 
with  certainty ;  and  this  because  such  allegation 
may,  at  times,  be  essential  to  the  defence  of  the 
prisoner ;  but  it  does  not  follow  that  a  variance 
between  the  proof  of  the  place  where  the  crime 
was  committed,  and  the  place  as  laid  in  the 
charge  should  acquit  the  prisoner; — it  is  suffi- 
cient to  identify  the  prisoner  with  the  perpetra- 
tion of  the  offence. 

A  soldier,  then,  accused  of  deserting  the  ser- 
vice from  one  place,  on  the  1st  day  of  a  particu- 
lar month,  but  who,  on  the  trial,  was  clearly 


368 


OF    EVIDENCE. 


CHAPTER 
XVI. 


Of  an  alibi. 


shown  to  have  deserted  on  the  specified  day, 
from  a  different  place,  would  justly  be  convicted ; 
for  the  essence  of  the  crime  is  made  out,  and  the 
place  from  whence  he  deserted,  makes  no  part 
of  the  offence,  but  is  a  mere  circumstance  of  de- 
scription. But  if  the  time  and  place  were  exhi- 
bited by  the  evidence,  as  so  variant  from  those 
stated  in  the  charge,  that  there  was  a  possibility 
of  the  prisoner  having  repeated  the  offence,  he 
would  necessarily  be  acquitted,  because  the  act 
charged  and  the  act  proved,  are  distinct  offences. 

To  lay  the  place,  in  a  charge,  enables  the  pri- 
soner to  prove  an  alibis  Yet  such  a  defence 
cannot  be  available,  where  the  crime  alleged 
against  the  prisoner  is  clearly  made  out  to  have 
been  committed  by  him  at  the  time  stated,  al- 
though at  a  different  place, — for  here  the  place 
stated  has  been  a  mistake,  and  the  crime  and 
criminal  clearly  exposed.  But  where  the  crime, 
and  the  place  of  its  perpetration  have  been  satis- 
factorily proved,  and  the  defence  set  up  is  an 
alibi,  the  question  is  one  as  to  the  prisoner's 
identity ;  and  evidence  of  his  being  at  another 
place,  at  the  time  of  the  commission  of  the 
criminal  act,  will  be  sufficient  to  acquit  him. 
And  hence  it  follows,  as  the  jurisdiction  of 
courts-martial  is  extended  without  limit  as  to 
place,  that  a  mistake  of  the  place,  unless  the 
place  be  material,  will  not  affect  the  proceed- 
ings ;  and  that  the  acts  of  the  prisoner,  tending 
to  establish  the  charge  whereever  committed, 
may  be  given  in  evidence.1 

A  soldier  charged  with  desertion,  may  be  found 
guilty  of  absence  icithout  leave ;  for  absence  is 

1  Simmons,  p.  381. 


OF    EVIDENCE.  369 

tne  principal  question  in  issue,  and  the  intention     CHAPTER 
or  design,  is  the  distinguishing  trait  of  the  offence        XVI> 
alleged.     And  so  generally,  in  all  other  species  S^J^'wSt 
of  accusations,  where  the  proof  is  not  sufficient  **n  that  c^ai" 
to  warrant  a  conviction  of  the  specific  offence 
laid  in  the  charge,  but  where  a  substantial  of- 
fence has  been  made  out  to  the  prejudice  of  good 
order  and  military  discipline,  the  verdict  may  be 
found  accordingly.     In  every  case  of  this  kind, 
where  a  minor  degree  of  guilt  is  found,  it  must 
be  understood  that  the  breach  of  a  particular  ar- 
ticle of  war,  is  not  expressly  and  exclusively  laid 
in  the  charge. 

The  notice  of  this  part  of  the  subject,  involves  Notice  of  83rd 
a  consideration  of  the  83d  article  of  war,  which, 
from  the  want  of  a  uniform  understanding  of  its 
intention,  spirit,  and  authority,  has  occasioned 
frequent  perplexity  in  the  deliberations  of  courts- 
martial,  and  a  consequent  diversity  in  their  de- 
cisions. 

"  Any  commissioned  officer,  convicted  before  a  Conduct  unbe- 
general  court-martial,  of  conduct  unbecoming  an  cerTnd "a* gen- 
officer  and  a  gentleman,  shall  be  dismissed  the 
service." 

Such  is  the  language  of  the  law, — a  law  in- 
tended to  preserve  the  honor  and  morals  of  the 
army,  as  a  distinctive  or  professional  body. 

In  all  the  legislative  enactments,  or  minor  Observation* 
regulations  for  the  government  of  the  army,  it  is 
to  be  observed  that  the  essential  object  in  view, 
is  the  good  order  and  military  discipline  of  that 
body ;  it  would  therefore  appear,  that  no  act  of 
a  military  person,  which  does  not  offend  against 
such  principle,  could  be  held  as  within  the  cog- 
nizance of  a  court-martial. 

47 


370  OP   EVIDENCE. 

OHAFPER  In  measuring  the  turpitude  of  any  conduct  by 
XYI'  the  law  just  quoted,  it  is  necessary  in  the  first 
place,  to  state  with  particularity  the  acts  of 
which  the  prisoner  is  accused,  in  order  not  only 
that  he  may  be  possessed  of  all  fair  means  of  de- 
fence, but  that  the  court  may  have  likewise  the 
power  to  judge  of  the  reasonableness  and  justice 
of  the  imputations  which  the  charge  alleges. 
The  writer  is  aware  of  some  of  the  difficulties 
which  have  been  thrown  around  this  subject  by 
the  very  indistinct,  and  confused  opinions  which 
have  been  expressed  by  several  British  military 
writers,  when  treating  of  a  similar  article  of  war 
for  the  government  of  the  English  army — and 
by  the  difference  which  exists  in  the  language, 
of  the  two  articles  of  war,  in  the  respective  ser- 
vices. 

There  are  terms  employed  in  the  British  ar- 
ticle of  war  which  stand  as  a  guide  to  the  mean- 
ing of  it,  which  have  been  discarded  in  the 
American,  but  when  the  subject  is  considered, 
must  necessarily  be  understood  as  implied  in 
the  latter,  in  order  to  give  it  a  proper  appli- 
cation. 

The  article  of  war  now  under  consideration, 
declares  that  "any  commissioned  officer  con- 
victed, before  a  general  court-martial,  of  conduct 
unbecoming  an  officer  and  a  gentleman,  shall  be 
dismissed  the  service ;"  whereas,  the  similar 
article  in  the  British  military  code  denounces 
the  penalty  of  cashiering  against  "any  officer 
who  shall  behave  in  a  scandalous,  infamous 
manner,  unbecoming  the  character  of  an  officer 
and  a  gentleman."  The  difference  adverted  to 
is  very  material,  and  in  the  one  affords  a  rule  by 


OP    EVIDENCE.  371 

which  punishment,  for  conduct  unbecoming  an     CHAPTER 
officer  and  a  gentleman,  is  to  be  measured,  or       XVI' 
furnishes  the  means  of  ascertaining  the  descrip- 
tion of  such  conduct  so  as  to  bring  it  by  military 
cognizance,  within  the  denunciation  of  the  law. 

Now,  it  is  apprehended,  that  conduct  unbe-  what  conduct 
coming  an  officer  and  a  gentleman,  before  it  can  officeT^P^" 
be  legally  made  the  cause  of  punishment,  must  gent 
be  shown  to  be  of  that  kind  as  necessarily  to  re- 
flect disgrace  upon  the  body  to  which  the  offen- 
der belongs.     And  this  disgrace  must  not  be 
such  as  the  accidental  or  capricious  judgment  of 
different  courts-martial  might  view  it;  but  be 
referable  to  the  certain  and  expressed  opinions 
or  feelings  of  the  community  at  large. 

By  this  it  is  intended  to  say,  that  the  partial 
judgments  of  men  based  on  mere  professional 
conventions  or  notions  of  honor,  (because  such 
may  vary  with  different  men,  and  at  various 
places,)  are  not  to  be  the  standard  altogether, 
but  that  the  imputations  grounded  on  the  partic- 
ular acts,  which  make  the  subject  of  the  charge, 
must  be  determined  or  rejected  according  to  the 
established  and  acknowledged  morals  of  the 
Christian  world. 

The  article  in  question  does  not  particularize  The  article  <A 
any  species  of  conduct  as  unbecoming  an  officer  JStictSJi™1 
and  a  gentleman,  but  leaves  that  to  be  deter-  conduct?168  °f 
mined  by  the  opinions  of  the  world,  or  by  those 
of  the  court-martial,  from  the  acts  alleged,  and 
from  which  the  military  community  might  be 
prejudiced  or  receive  detriment,  were  it  to  coun- 
tenance behavior  in  any  of  its  members  which 
was  of  such  a  nature  as  to  involve  scandal  and 
infamy. 


372 


OF    EVIDENCE. 


CHAPTER 
XVI. 


Standard  of 
military  con- 
duct. 


There  are,  undoubtedly,  certain  acts,  which, 
however  immoral,  do  not  import  infamy,  and 
are  not  liable,  in  any  of  the  departments  of 
social  life,  to  punishment  by  declared  law. 
They  may,  in  the  estimation  of  many,  affect 
the  standing  of  the  individual  who  is  guilty  of 
them,  and  yet  be  not  such  as  either  to  debase 
him  in  the  eyes  of  the  community,  or  exclude 
him  from  society. 

These  are  cases  in  which,  it  is  believed,  that 
a  court-martial  could  not  apply  the  stringent 
powers  of  this  article  of  war  for  correction. 
The  military  community  cannot  expect,  nor 
ought  it  to  be  expected  of  them,  to  preserve 
a  higher  tone  of  moral  conduct  than  what  is 
sustained  by  the  higher  orders  of  society.  The 
means,  therefore,  conceded  by  the  article  in 
question,  are  not  to  be  considered  with  refer- 
ence altogether  to  such  a  purpose,  for  if  such 
were  the  case,  military  officers  would  be  sub- 
jected to  a  capricious  standard  of  judgment,  or 
to  an  ordeal  which  but  very  few  men  could 
bear! 
interpretation  Mr.  Samuel,  in  his  treatise  on  "  military  law," 

by  Samuel  of  .          .          J 

the  British  ar-  when  speaking  of  the  similar  article  in  the  .Eng- 
lish military  code,  says — "  the  words  ' officer  and 
gentleman,'  though  iii  general  to  be  understood 
as  one,  single,  and  indivisible  term,  appear  not 
to  be  used  so  here.  The  misbehavior,  entailing 
on  it  the  penalty  declared  by  this  article,  must 
be  such,  as  I  understand  it,  as  to  implicate  in  the 
first  place  the  officer ;  that  is,  it  must  arise  in 
some  sort  out  of  his  office ;  and  affect  incident- 
ally, only,  the  character  of  the  gentleman"1 

i  Page  645. 


OF    EVIDENCE. 


373 


But  the  writer  must  disagree  with  such  an  ex-     CHAPTER 
position  of  the  article,  if  it  is  to  be  received  as 
the  interpretation  of  the  American  law: — nor 
does  the  practice  accord  with  such  an  explana- 
tion of  it,  even  in  the  British  service. 

In  the  American  army,  a  charge  laid  under 
this  particular  article  of  war,  is  one,  single,  and 
indivisible  term,  and  cannot  be  broken  by  a  find- 
ing of  the  court ;  though,  when  such  conduct  as 
the  breach  of  the  particular  article  in  question, 
is  not  expressly  and  exclusively  laid  in  the 
charge,  the  court  may,  if  a  substantial  military 
offence  be  shown  by  the  evidence  to  have  been 
committed,  find  a  minor  degree  of  guilt,  as  "  con- 
duct prejudicial  to  good  order  and  military  dis- 
cipline ;"  for  it  would  certainly  "  be  a  strange 
doctrine  to  maintain,  that  because  the  court 
found  less  proved  than  charged,  that  no  punish- 
ment should  be  awarded."1 

The  degree  to  which  certain  acts  may  impugn 
one's  character,  as  conduct  unbecoming  an  offi- 
cer and  a  gentleman,  is  a  matter  of  inference  for 
the  judgment  of  the  court,  and  where  such  im- 
putation is  denied  by  the  evidence,  there  must 
be  an  acquittal ;  the  facts  charged  may  be  clearly 
proved,  and  yet  not  involve  the  guilt  alleged  by 
the  accuser  in  the  charge.  For  the  court  are  to 
try  unofficerlike,  and  ungentlemanlike  conduct, 
and  to  see  that  it  be  proved  as  it  is  alleged, — or 
to  find  such  minor  degree  of  guilt,  under  the  re- 
strictions before  mentioned,  as  the  nature  of  the 
evidence  will  warrant. 

In  every  prosecution  before  a  court-martial 
for  conduct  unbecoming  an  officer  and  a  gentle- 

»  Hough,  note  310,  p.  499. 


374  OF    EVIDENCE. 

CHAPTER  man,  the  degree  of  tne  offence  must  be  such  as 
„  XVI'  to  reflect  discredit  upon  the  body  of  the  army , 
or  the  nature  of  it  such  as  to  militate  against 
the  requirements  of  "good  order  and  military 
discipline,"  before  a  legal  conviction  can  be  de- 
clared, or  punishment  awarded,  according  to  the 
imperative  language  of  the  law,  for  that  parti- 
cular charge,  or  according  to  the  discretion  of 
the  court,  if  a  modified  verdict  be  returned. 

Acts,  therefore,  which  are  alleged  in  a  charge 
of  this  character,  but  which  by  the  court  are  di- 
vested of  the  imputation,  which  constitutes  the 
crime,  and  which  are,  at  the  same  time,  not  of 
such  a  kind  as  would  of  themselves  constitute  a 
breach  of  good  order  and  military  discipline,  can 
of  necessity  involve  no  guilt — it  can  only  be  by 
such  features  that  they  are  made  cognizable  by 
military  courts.  This  is  a  matter  for  the  atten- 
tion and  consideration  of  courts-martial,  when- 
ever a  charge  under  the  particular  article  of  war 
now  in  review,  is  laid  before  them 

It  is  readily  perceived,  that  when  deliberating 
upon  a  charge  of  "  conduct  unbecoming  an  offi- 
cer and  a  gentleman,"  some  officers,  members  of 
the  court,  who  might  be  impressed  with  very 
high  notions  of  personal  and  professional  honor, 
or  possessing  a  very  refined  and  delicate  percep- 
tion of  the  proprieties  which  should  distinguish 
a  gentleman,  would,  without  strictly  regarding 
the  intention  or  consequences  of  the  law  in  ques- 
tion, pronounce  a  verdict  of  guilty,  when  in  real- 
ity no  legal  offence  had  been  committed.  To 
prevent  such  errors  of  opinion,  which  involve 
the  legal  rights  of  others,  though  proceeding 


OF    EVIDENCE.  375 

from  a  noble  sentiment,  is  the  purpose  of  a  just     CHAPTER 
explanation  of  the  article. 


The  following  case,  quoted  from  Me  Arthur,  case  died  by 

~    ,         ,      .„  McArthnr. 

by  Samuel,  at  page  650,  will  sufficiently  illus- 
trate the  subject. 

"  At  a  general  court-martial  held  at  the  Cape 
of  Good  Hope,  May,  1801,  an  officer  was  tried, 
charged  with  scandalous,  infamous  conduct,  un- 
becoming the  character  of  an  officer  and  a  gen- 
tleman, in  having  sent  a  charge  of  six  hundred 
pounds,  or  thereabouts,  against  Sir  George 
Younge,  for  a  horse,  which  the  said  officer  had 
declared  to  be  a  present  to  Sir  George,  when 
governor  of  the  colony  of  the  Cape  of  Good 
Hope. 

"  In  respect  to  which  charge  the  court-martial 
made  a  distinction ;  they  acquitted  the  officer  of 
scandalous,  infamous  behavior,  but  considered 
his  conduct,  nevertheless,  as  unbecoming  the 
character  of  an  officer  and  a  gentleman,  for  which 
they  adjudged  him  to  be  suspended  from  rank 
and  pay  for  the  space  of  six  calendar  months." 

"  The  proceedings  having  been  laid  before  his 
Majesty,  the  judge  advocate  general  signified  to 
Lieutenant  General  Dundas,  the  commander  in 
chief  of  his  Majesty's  forces  at  the  Cape,  that 
his  Majesty,  laying  out  of  the  case  any  question 
touching  either  the  right  or  the  delicacy  of  the 
officer's  claim  to  a  compensation  for  the  horse, 
concerning  which  the  difference  had  arisen,  points 
not  within  the  cognizance  of  a  court-martial, 
considered  the  adjudication  as  irregular,  inas- 
much as  the  court  had  acquitted  him  of  the  only 
imputation  which  could  bring  the  business  as  a 
charge  before  them, — namely,  of  any  scandalous 


376  OP   EVIDENCE. 

CHAPTER  or  infamous  behavior  in  the  transaction ;  his 
rvi-  Majesty  could  not,  therefore,  approve  the  sen- 
tence. At  the  same  tune  it  was  signified,  his 
Majesty  was  graciously  disposed  to  attribute  the 
error  to  the  nice  feelings  of  the  officers  who  com- 
posed the  court-martial,  which  had  urged  them 
to  mark  their  dislike  of  a  conduct  which  appear- 
ed to  them  not  decorous." 

The  above  case  exemplifies  what  the  writer 
has  endeavored  to  explain, — that  it  is  not  all 
conduct  which  offends  against  the  delicate  pro- 
prieties and  decorum  of  an  officer  and  a  gentle- 
man, which  can  be  held  amenable  to  military 
law,  but  such  only  as  while  it  impugns  the  char- 
acter of  an  officer  and  a  gentleman,  at  the  same 
time  casts  upon  the  military  community  a  shade 
of  discredit  and  reproach. 

In  speaking  of  the  same  case  (quoted  above), 
Captain  Simmons  very  justly  remarks — 

"  An  officer's  sending  an  improper  charge  for 
a  horse,  taken  abstractedly,  could  in  nowise  af- 
fect military  discipline,  and  excepting  as  it 
might  implicate  the  individual  character  of  an 
officer,  in  a  degree  amounting  to  '  scandalous,  in- 
famous conduct,'  no  offence  under  the  articles  of 
war  could  be  charged ;  since  there  is  not  any 
provision  in  the  article  for  the  cognizance  of  un- 
officerlike  and  ungentlemanly  conduct  (divested 
of  a  tendency  to  affect  good  order  and  military 
discipline),  in  any  degree  less  than  that  involving 
infamy  and  scandal."1 

The  distinction  thus  observed  upon  by  Cap- 
tain Simmons,  will  undoubtedly  be  of  aid  in  all 
questions  brought  before  courts-martial  for  adju- 

1  Simmons,  p.  376. 


OF    EVIDENCE.  «  '      377 

dication,  and  which  are  laid  under  the  eighty-     CHAPTER 
third  article  of  war.    Thus  a  charge  of  unofficer-        XVI> 
like  and  ungentlemanly  conduct,  when  divested 
of  all  tendency  to  affect  good  order  and  military 
discipline,  and  at  the  same  time  involving  no 
moral  turpitude  of  such  a  kind  as  would  reflect 
discredit  upon  the  military  community,  cannot 
be  deemed  cognizable  by  a  military  court. 

It  may  also  be  said  that  a  similar  interpreta-  Third  article 

.  ,         ,,  ,          .  ,         ,.    ,  .    ,  n      for  the  govern- 

tion  should  be  given  to  the  third  article,  sect.  1,  mentof  thena- 
of  the  "  act  for  the  better  government  of  the  iliiy  observed! 
navy  of  the  United  States,"  approved  April  23, 
1800 — which  declares,  that  "  any  officer  or  other 

person  who  shall  be  found  guilty  of or  any 

other  scandalous  conduct,  tending  to  the  destruc- 
tion of  good  morals,  shall,  if  an  officer,  be  cash- 
iered, or  &c.,  &c.'u 

The  manifest  intention  of  this  naval  regula- 
tion, is  the  preservation  of  the  purity  and  honor 
of  the  navy ;  precisely  as  in  the  land  service, 
the  article  of  war  referred  to  is  for  the  preserva- 
tion of  the  morals  of  the  army. 

Fifthly. — Hearsay  is  not  evidence.  Hearsay  is  not 

This  is  a  general  rule,  the  propriety  of  which 
is  manifest,  from  the  following  considerations, — 
that  the  statement  is  not  made  by  the  witness 
from  his  own  knowledge,  and  therefore  is  not 
sanctioned  by  an  oath.  And  that  the  party 
against  whom  the  evidence  is  offered,  can  have 
no  opportunity  of  examining  into  the  means  of 
knowledge  of  the  party  who  made  the  state- 
ment. As  every  fact  against  a  prisoner  is  re- 
quired by  the  law  to  be  proved  on  oath,  and  in 

1  Roman's  Naval  Laws,  p.  59. 
48 


378 


OF    EVIDENCE. 


CHAPTER 
XVI. 

Exceptions  of 
dying  declara- 
tions. 


Only  admitted 
in  cases  of  hom- 
icide, and 
where  the  death 
is  the  subject  of 
the  declaration. 


Dying  declara- 
tions—charac- 
ter, &c.,  of  de- 
ceased may  be 

examined. 


the  presence  of  the  accused,  it  must  follow  that 
hearsay  evidence  cannot  be  allowed. 

There  are,  nevertheless,  some  exceptions  to 
this  rule ;  the  most  prominent  of  which  is  the 
admission  of  dying  declarations,  to  establish  the 
guilt  of  a  prisoner  indicted  for  murder,  or  in  all 
cases  of  homicide.  This  exception  is  founded 
partly  on  reason,  and  partly  on  necessity.  From 
the  nature  of  the  crime,  it  often  happens  that 
there  is  no  third  person  present  to  be  an  eye-wit- 
ness to  the  fact,  and  the  usual  witness  in  other 
felonies,  viz :  the  party  injured  himself,  is  got 
rid  of.  A  declaration  made  in  extremity,  when 
the  person  is  at  the  point  of  death ;  when  every 
motive  to  falsehood  is  silenced,  and  the  mind  is 
induced  by  the  most  powerful  considerations  to 
speak  the  truth,  has  been  regarded  as  equal  to 
that  which  is  supported  by  the  solemnity  of  an 
oath  administered  in  court.1 

But  it  is  only  in  cases  of  homicide,  and  where 
the  circumstances  of  the  death  are  the  subject 
of  the  declaration,  that  such  evidence  is  admis- 
sible. And  such  declarations  are  only  available 
when  the  party  making  them,  is  aware  of  his 
situation,  that  he  is  in  a  dying  state.  Positive 
evidence  of  this  knowledge  is  not  required ;  but 
it  may  be  inferred  from  the  general  conduct  and 
deportment  of  the  party. 

As  the  declarations  of  a  dying  man  are  admit- 
ted, on  a  supposition  that  his  awful  situation  is 
such  as  to  impress  him  with  the  necessity  of 
speaking  the  truth  without  disguise  or  malice,  it 
follows  that  the  party  against  whom  they  are 
produced  in  evidence,  may  enter  into  the  parti- 

»  Roscoe's  Grim.  Ev.,  22. 


OF    EVIDENCE,  379 

culars  of  his  state  of  mind,  and  of  his  behavior     CHAPTER 
in  his  last  moments, — and  may  show  that  the        XVI" 
deceased  was  not  of  such  a  character  as  was 
likely  to  be  impressed  with  a  religious  sense  of 
his  approaching  dissolution. 

So  may  the  dying  declaration  of  an  accom-  Dying  deciara- 
plice  be  admitted,  for  if  living,  the  accomplice  complice  admit- 

.,  .  .,  „    JL  ,,        ted.    Notsoof 

would  have  been  a  competent  witness.    But  the  a  convict 
declarations  of  a  convict  at  the  moment  of  ex- 
ecution, would  not  be  received  as  the  statement 
of  a  dying  man,  on  the  ground,  that  if  alive,  his 
evidence  could  not  have  been  received. 

In  all  cases  where  the  declaration  of  a  de-  Precise  words 
ceased  witness  is  produced,  the  witness  must  re-  ^d!81 
peat  the  precise  words  ;  he  will  not  be  allowed 
to  speak  as  to  the  purport  or  effect,  of  what  de- 
ceased may  have  sworn.     The  court  alone  are 
to  judge  of  the  effect  of  the  words.1 

If  a  witness  who  has  been  examined  in  a  for-  Testimony  of  a 
mer  action  between  the  same  parties,  and  where  dead?" 
the  point  in  issue  was  the  same  as  in  the  second 
action,  is  since  dead,  what  he  swore  at  the  trial 
may  be  proved  by  one  who  heard  him  give  evi- 
dence.   And  by  the  same  rule,  where  it  appears 
that  a  witness  is  kept  away  by  the  contrivance 
of  the  adverse  party,  other  witnesses  may  be  ad- 
mitted to  prove  what  he  swore  on  the  former 
occasion.2 

Hearsay  may  be  used  as  inducement  and  in  Hearsay 
illustration  of  more  substantial  testimony.    And 
the  declarations  of  a  witness  at  another  time, 
may  be  adduced  to  invalidate  or  to  confirm  his 
evidence,  by  showing  that  he  varies  in  his  state- 

1  Phillips'  Ev.,  199.  »  Ibid.,  197. 


witness  since 


380 


OF    EVIDENCE. 


CHAPTER 
XVI. 

Notoriety, 


Sayings  and 
acts  of  third 
persons. 


Declarations  of 
the  parties. 


ment,  or  has  maintained  a  uniform  consistency 
in  his  narration.1 

As  to  the  notoriety  of  a  particular  fact  or 
opinion,  although  it  may  appear  to  some  extent 
to  be  in  the  nature  of  hearsay,  is  yet,  when  con- 
sidered in  regard  to  particular  conduct,  strictly  a 
substantial  fact,  and  therefore  is  to  be  proved 
from  the  knowledge  of  the  witness,  as  the  ex- 
istence of  any  other  fact  is  proved. 

What  a  third  person  has  said  or  written  is 
admissible  in  many  cases,  as  amounting  to  an 
act  done  by  him,  or  as  showing  his  knowledge, 
or  as  evidence  of  his  conduct.  If  for  instance 
it  is  material  to  inquire  whether  a  certain  per- 
son gave  a  particular  order  on  a  certain  subject, 
what  he  has  said  or  written  may  be  evidence  of 
the  order ;  or  where  it  is  material  to  inquire 
whether  a  certain  fact,  be  it  true  or  false,  has 
come  to  the  knowledge  of  a  third  person,  what 
he  has  said  or  written  may  as  clearly  show  his 
knowledge,  as  what  he  has  done.  So  where  it  is 
relevant  and  material  to  inquire  into  the  conduct 
of  rioters  or  mutineers,  what  has  been  said  by 
any  of  the  party,  in  the  act  of  rioting,  must 
manifestly  be  admissible  in  evidence,  as  showing 
the  design  and  intentions.2 

Now  in  regard  to  receiving  the  declarations, 
or  what  was  said  by  the  parties  during  the  con- 
tinuance of  the  transactions,  it  may  be  affirmed 
that  such  is  not  objectionable  as  hearsay,  be- 
cause it  is  not  such,  or  the  relation  of  third  per- 
sons unconnected  with  the  fact ;  but  the  decla- 
rations of  the  parties  to  the  fact,  themselves,  and 

1  Chitty's  Grim.  Law,  568.  a  Roscoe's  Grim.  Ev.,  21. 


OF    EVIDENCE.  381 

are  therefore  illustrative  of  its  peculiar  circum-  .  CHAPTER 
stances  and  character.1 


But  it  is  not  necessary  to   enlarge  on   this  when  hearsay 

.  -i  mi  .       .      is  admissible 

branch  of  the  subject  of  evidence.     The  prmci-  generally devei 

,..,,.,  ,    oped  by  the  par- 

pie  that  hearsay  is  not  admissible  is  clear  and  tkuiar  cases. 

determinate;  and  whatever  exceptions  are  al- 
lowed to  the  rule,  will,  it  is  presumed,  in  the 
more  simple  cases,  when  compared  with  the 
complexity  of  civil  proceedings,  which  arise 
for  military  adjudication,  be  easily  perceived 
and  admitted  in  practice. 

Sixthly. Of  Confessions.  Confessions. 

In  regard  to  the  degree  of  credit  which  a  jury  what  credit  to 

•         .  ,         .         '  be  given  to  con- 

ought  to  attach  to  a  confession,  much  difference  fessions. 
of  opinion  has  existed.  The  voluntary  confes- 
sion of  the  party  is  said,  by  some,  to  be  reckon- 
ed the  best  evidence ; — for,  if  a  man  swearing 
for  his  interest  can  give  no  credit,  he  must  cer- 
tainly give  most  credit  when  he  swears  against 
it :  and  that  a  free  and  voluntary  confession  is 
deserving  of  the  highest  credit,  because  it  is  pre- 
sumed to  flow  from  the  highest  sense  of  guilt, 
and,  therefore,  it  is  admitted  as  proof  of  the 
crime  to  which  it  refers. 

On  the  other  hand,  it  is  said  that  hasty  con- 
fessions made  to  persons  having  no  authority  to 
examine,  are  the  weakest  and  most  suspicious 
of  all  evidence.  Proof  may  be  too  easily  pro- 
cured ;  words  are  often  misreported  through  ig- 
norance, inattention,  or  malice,  and  they  are 
extremely  liable  to  misconstruction.  Moreover, 
this  evidence  is  not,  in  the  usual  course  of 
things,  to  be  disproved  by  that  sort  of  negative 

1  Roscoe's  Crim.  Ev.,  20. 


382  OP    EVIDENCE. 

CHAPTER  -  evidence,  by  which  the  proof  of  plain  facts  may 
XYI>        be,  and  often  is  confronted.1 

Now,  although  it  can  hardly  be  conceived 
that  a  man  would  confess  himself  guilty  of  an 
act  which  he  had  not  committed,  so  in  opposi- 
tion to  the  feelings  and  principles  of  human 
nature,  yet  there  is  no  doubt  that  instances  have 
occurred,  in  which  innocent  persons  have  con- 
fessed themselves  guilty  of  crimes  of  the  gravest 
nature.2 

Growing  out  of  such  considerations,  the  fol- 
lowing rules  have  been  established  as  safe  and 
just  when  such  evidence  is  submitted  for  the 
decision  of  a  jury. 

Confession  to  be       Confessions  ought  always  to  be  received  with 
caution-good    caution.     And  a  voluntary  confession  made  by 

when  the  corpus  .         ,  ,  *. .  . 

delicti  is  proved,  a  person  who  has  committed  an  onence,  is  evi- 
dence against  him,  upon  which  he  may  be  con- 
victed, although  the  confession  is  totally  uncor- 
roborated by  other  evidence ; — provided,  the  cor- 
pus delicti,  that  is,  the  act  constituting  the  crime, 
be  proved. 

confession  to  be  A  confession  is  not  admissible  in  evidence, 
eely>  unless  it  was  made  freely  and  voluntarily,  and 
not  under  the  influence  of  promises  or  threats. 
With  regard  to  what  is  a  promise  or  a  threat,  as 
will  exclude  a  confession,  it  is  laid  down,  that 
saying  to  the  prisoner  it  will  be  worse  for  him 
if  he  does  not  confess,  or  that  it  will  be  better 
for  him  if  he  do,  is  sufficient  to  exclude  the  con- 

Promisesor       fession.     Indeed,  so  strictly  has  the  rule  been 

nugatory.  '  applied,  that  the  slightest  hope  of  mercy  held 
out  to  a  prisoner,  or  a  threat,  for  the  purpose  of 
inducing  a  confession,  have  been  deemed  suffi- 

i  Roscoe's  Crim.  Ev.,  29.  *  Ibid. 


OF   EVIDENCE.  383 

cient  to  make  such  confession  nugatory.     So,  if     CHAPTER    . 

a  confession  be  made  with  a  view,  and  under        XVI* 

the  hope  of  being  permitted  to  give  evidence  for 
the  public,  or  commonwealth,  it  is  not  admissi- 
ble. Though,  should  the  prisoner  be  admitted, 
and  refuse  to  give  evidence  on  the  trial  of  his 
accomplices,  he  may  be  convicted  upon  such 
confession. 

It  must  be  understood,  however,  that  it  is  not  what  is  hope 
every  hope  of  favor  held  out  to  a  prisoner  that 
will  render  the  confession  afterwards  made  by 
him  inadmissible ; — the  promise  must  have  some 
reference  to  his  escape  from  the  charge.  So, 
likewise,  if  a  confession  has  been  made  after  a 
threat  or  promise,  but  under  such  circumstances 
as  to  create  a  reasonable  presumption,  that  the 
threat  or  promise  had  no  influence,  or  had  ceased 
to  have  any  upon  the  mind  of  the  prisoner,  the 
confession  is  admissible.  Thus,  if  the  impres- 
sion that  a  confession  is  likely  to  benefit  him 
has  been  removed  from  the  mind  of  the  prisoner, 
what  he  says  will  be  evidence  against  him. 
The  prisoner's  mind,  in  order  to  make  a  confes- 
sion available  against  him,  must  be  entirely  free 
of  all  inducement,  which  either  threats  or  pro- 
mises might  have  created. 

When  the  promise  or  threat  proceeds  from  a  Promise  or 

,        I  _  .  ,        ,         threat  by  an  un- 

perSOn  who  has  no  power  to  enforce  it,  and  who  authorized  per- 

possesses  no  control  over  the  prisoner,  a  con- 
fession made  under  such  circumstances  is  ad- 
missible. 

The  threats  or  promises  must  have  reference  Must  have  nt 

.  i        j  j  T      erence  to  some 

to  some  temporal  advantage  in  order  to  invali-  temporal  ad- 
date  a  confession:  and,  therefore,  it  has  been 
held  that  a  confession  made  to  a  chaplain,  who 


384 


OF    EVIDENCE. 


CHAPTER 
XVI. 


Confession  ob- 
tained by  arti- 
fice. 


Other  facts 
tending  to  es- 
tablish guilt. 


Only  evidence 
against  the  par- 
ty making  the 
confession. 


Admissions  by 
winesses. 


exhorted  the  prisoner  to  confess,  as  "  before  God 
it  would  be  better  for  him  to  confess  his  sins," 
was  admissible. 

Where  a  confession  has  been  obtained  by  ar- 
tifice, without  the  use  of  promises  or  threats,  it 
is  admissible.  Thus,  if  a  confession  were  made 
under  the  mistaken  supposition  that  some  of  the 
prisoner's  accomplices  were  in  custody,  it  would 
be  good  against  him, — even  though  artifice  had 
been  employed  to  impress  him  with  such  belief. 
Although  a  confession  obtained  by  means  of 
promises  or  threats  cannot  be  received,  yet,  if  in 
consequence  of  that  confession,  certain  facts, 
tending  to  establish  the  guilt  of  the  prisoner,  are 
made  known,  evidence  of  those  facts  may  be  re- 
ceived. Facts  thus  obtained,  however,  must  be 
fully  and  satisfactorily  proved,  without  calling  in 
the  aid  of  any  part  of  the  confession,  from  which 
they  may  have  been  derived. 

A  confession  is  only  evidence  against  the 
party  himself  who  made  it,  and  cannot  be  used 
against  others ; — therefore,  the  confession  of  the 
principal  is  not  admissible  in  evidence,  to  prove 
his  guilt,  upon  an  indictment  against  the  ac- 
cessory. 

As  to  the  question,  whether  the  statement 
made  by  a  witness  upon  his  examination  can  be 
afterwards  used  against  him, — the  general  rule 
is,  that  admissions  made  under  compulsory  pro- 
cess, are  evidence  against  the  party.  So  it  is 
said  that  when  a  witness  answers  questions 
upon  his  examinations  on  a  trial,  tending  to 
criminate  himself,  and  to  which  he  might  have 
demurred,  his  answers  may  be  used  for  all 
purposes. 


OP    EVIDENCE.  385 

In  general  a  person  is  not  answerable,  crimi-     CHAPTER 
nally,  for  the  acts  of  his  servants  or  agents,  and,        IVI* 
therefore,  the  declarations  or  confessions  of  a 


servant  or  agent  will  not  be  evidence  against  agent- 
him.     But  it  is  otherwise  where  the  declaration 
of  an  act  done,  relates  to/ the  ordinary  course  of 
the  agent's  employment — such  will  be  evidence 
in  a  criminal  as  well  as  in  a  civil  suit. 

Another,  and  a  most  important  rule  is — that  confession 
a  confession,  in  criminal  as  well  as  in  civil  cases,  together. 
made  by  a  party,  is  to  be  taken  together.  There 
can  be  no  doubt  that  if  a  prosecutor  use  the  de- 
claration of  a  prisoner,  he  must  take  the  whole 
of  it  together,  and  cannot  select  one  part  and 
leave  another.  But  if,  after  the  whole  of  the 
statement  of  the  prisoner  is  given  in  evidence, 
the  prosecutor  is  in  a  situation  to  contradict  any 
part  of  it,  he  is  at  liberty  to  do  so,  and  then  the 
statement  of  the  prisoner  and  the  whole  of  the 
other  evidence  must  be  left  to  the  jury,  as  in 
any  other  case,  where  one  part  of  the  evidence 
is  contradictory  to  another.  Although  the  whole 
of  a  confession  is  to  be  taken  together,  it  does 
not  follow  that  every  part  of  it  is  entitled  to 
equal  credit.  A  jury  may  believe  that  which 
charges  the  prisoner,  and  reject  that  which  is  in 
his  favor,  if  they  see  sufficient  grounds  for  so 
doing. 

An  admission  on  the  part  of  the  prisoner  is 
not  conclusive,  and  if  it  afterwards  appear  in 
evidence  that  the  fact  was  otherwise,  the  admis- 
sion  will  be  of  no  weight.  Thus,  upon  an  in- 
dictment for  bigamy,  where  the  prisoner  admit- 
ted the  first  marriage,  and  it  appeared  at  the 
trial  that  such  marriage  was  void,  for  the  want 

49 


OF    EVIDENCE. 


CHAPTER     of  consent  of  the  guardian  of  the  woman,  the 
XY1>        prisoner  was  acquitted.     Such  confessions  are 
matters  void  in  law,  or  false  in  fact. 


rule.  It  is  a  general  rule,  that  the  whole  of  admis- 
sions or  confessions  must  be  taken  together,  so 
that  what  is  given  in  evidence,  be  neither  more 
nor  less  than  what  the  prisoner  intended.  If  a 
written  paper  be  referred  to,  without  which  the 
confession  is  not  complete,  the  contents  of  the 
paper  ought  to  be  shown  before  the  statement 
can  be  used  as  evidence  against  the  party.  Or 
if  a  person  says,  he  "  did  owe  a  debt,  but  that 
he  had  paid  it,"  such  admission  will  not  be  re- 
ceived as  evidence  to  prove  the  debt,  without 
being  evidence  also  of  the  payment.1 
Military  reguia-  Although  a  plea  of  guilt  is  a  confession  in  the 

tions  for  courts-  ' 

martial—  plea  fullest  degree,  yet  there  have  been  military  regu- 
lations issued  for  the  guidance  of  courts-martial 
in  such  cases,  intended  solely  for  the  benefit  of 
the  prisoner,  and  the  assistance  of  the  revising 
authority.  Such  rules  or  regulations  are  not  to 
be  understood  as  imposing  new  principles  or 
laws  of  evidence,  because  independent  of  statu 
tory  authority,  no  rules  which  conflict  with  those 
recognized  by  the  courts  of  law,  could  in  that 
sense  be  binding  ;  and  therefore,  although  courts- 
martial  should  disregard  such  instructions  and 
confirm  the  plea  of  guilty,  notwithstanding  the 
rejection  of  all  corroborating  evidence,  the  sen- 
tence resulting  therefrom,  if  confirmed  and  acted 
upon,  and  not  otherwise  illegal,  could  not  expose 

Disregard  of      the  members  of  the  court-martial  to  any  penalty, 

them  a  breach  ,  .  _  , 

of  duty.  or  any  proceeding  in  a  court  of  common  law 

1  Vide  Rosooe's  Grim.  Ev.,  titli  "Confessions,"  and  Pcill'.pt 
Evidence. 


OF   EVIDENCE.  387 


vet  would  be  viewed  as  a  breach  of  military     CHAPTER 
duty.  XVI- 


By  the  several  acts  of  congress,  having  in  Origin  of  mm- 
view  the  regulation  of  the  military  establish-  H,  anyhow 
rrient,  is  the  jurisdiction  of  military  courts  de-  dence  areeto  be 
termined,  though  the  mode  of  conducting  the 
proceedings  may  be  declared  by  the  general  or- 
ders for  the  army.     But  the  rules  of  evidence 
are  only  to  be  ascertained  by  reference  "to  the 
acknowledged  or    established  maxims  of  the 
common  law  courts.1 

4.  Witnesses. — Of  the  competency  of  ucitnesses.  competency  of 

T  •  i  i  witnesses. 

In  a  previous  chapter,  some  remarks  were  Referenceto 
made  upon  the  deficiency  in  the  military  laws,  ^aS.118 wit- 
owing  to  which  a  court-martial  could  not  compel 
the  attendance  of  a  witness,  if  not  a  military 
person.  It  is,  therefore,  not  necessary  in  this 
place  to  repeat  the  observations.  In  order,  how- 
ever, to  remove  objections  on  the  score  of  ex- 
pense, it  is  provided  by  the  987th  paragraph  of 
the  general  regulations  for  the  army,  that  non- 
military  persons  who  are  regularly  summoned  to 
attend  a  court-martial  as  witnesses,  shall  be  al- 
lowed a  certain  sum  for  travelling,  and  a  per 
diem  allowance  for  the  time  occupied  in  going 
to,  attending  on,  and  returning  from  the  court. 

It  is  a  general  rule  that  all  persons  may  be  what  persons 

..  i  i  i          /•  i  3-  inadmissible  as 

witnesses  who  are  capable  of  understanding,  witnesses. 
and  may  be  presumed  to  feel  the  obligations  in- 
curred by  a  solemn  appeal  to  the  Almighty. 
And  the  law  requiring  all  witnesses  to  be  ex- 
amined on  oath  or  affirmation,  it  is  to  be  inquired 
who  are  inadmissible,  either  from  their  inability 
to  comprehend  the  former,  or  from  their  sup- 

1  Simmons,  p.  442. 


388  OF    EVIDENCE. 

CHAPTER     posed  liability  to  slight  and  disregard  the  lat 
XVI-     _  ter.1 


lerebilitd  Seun       Inability  to  understand  the  obligations  of  an 
obligations  of    oath,  is  the  first  objection  to  be  considered.     It 

an  outh.    Of  •* 

seems  that  there  is  no  time  fixed  wherein  chil- 


dren are  to  be  excluded  from  evidence,  but  that 
the  reason  and  sense  of  their  evidence  are  to  ap- 
pear from  the  questions  propounded  to  them, 
and  their  answers.  And  therefore,  a  child  of 
any  age,  if  capable  of  distinguishing  between 
good  and  evil,  may  be  examined  upon  oath  ;  but 
that  a  child  of  whatever  age,  cannot  be  exa- 
mined unless  sworn.  This  is  now  the  estab- 
lished rule  in  all  cases,  civil  as  well  as  criminal, 
and  whether  the  prisoner  is  tried  for  a  capital 
offence,  or  one  of  an  inferior  nature.2 

Where  a  case  depends  upon  the  testimony  of 
an  infant,  it  is  usual  for  the  court  to  examine 
him  as  to  his  competency  to  take  an  oath,  pre- 
viously to  his  going  before  the  grand  jury,  and 
if  found  incompetent  for  want  of  proper  instruc- 
tion, the  court  will,  in  its  discretion,  put  off  the 
trial,  in  order  that  the  party  may,  in  the  mean- 
time, receive  such  instruction  as  may  qualify 
him  to  take  an  oath  3 

Deaf  and  dumb.  A  person  born  deaf  and  dumb,  though  prima 
facie  in  contemplation  of  law  an  idiot,  yet  if  it 
appear  that  he  has  the  use  of  his  understanding, 
he  is  criminally  answerable  for  his  acts  ;  and  is 
also  competent  as  a  witness.  The  communica- 
tion between  the  court  and  such  a  witness,  must 
be  by  a  sworn  interpreter,  who  is  able  by  means 

1  Chitty's  Grim.  Law,  587.  2  Roscoe's  Grim.  Ev.,  94. 

»  Ibid,  94. 


OP    EVIDENCE. 


of  signs  and  motions,  to  convey  the  questions     CHAPTER 
and  answers  the  one  to  the  other.1  XVI> 


Persons  not  possessing  the  use  of  their  under-  idiots,  madmen, 

...  ,  .  and  lunatics — 

standing,  as  idiots,  madmen,  and  lunatics,  if  they  intoxication. 
are  either  continually  in  that  condition,  or  sub- 
ject to  such  a  frequent  recurrence  of  it,  as  to 
render  it  unsafe  to  trust  to  their  testimony,  are 
incompetent  witnesses. 

An  idiot  is  a  person  who  has  been  non  compos 
mentis  from  his  birth,  and  who  has  never  any  lucid 
intervals,  and  cannot  be  received  as  a  witness. 

A  lunatic  is  a  person  who  enjoys  intervals  of 
sound  mind,  and  may  be  admitted  as  a  witness  in 
lucidis  intervallis.  He  must,  of  course,  have  been 
in  possession  of  his  intellect  at  the  time  of  the 
event,  to  which  he  testifies,  as  well  at  the  time 
of  examination,  and  it  has  been  justly  observed, 
that  it  ought  to  appear  that  no  serious  fit  of  in- 
sanity has  intervened,  so  as  to  cloud  his  recollec- 
tion, and  cause  him  to  mistake  the  illusions  of 
imagination,  for  the  events  he  has  witnessed. 

With  regard  to  those  persons  who  are  afflicted 
with  monomania,  or  an  aberration  of  mind  on 
one  particular  subject,  (not  touching  the  matter 
in  question,)  and  whose  judgment  in  other  re- 
spects is  correct,  the  safest  rule  appears  to  be  to 
exclude  their  testimony  ;  it  being  impossible  to 
calculate  with  accuracy,  the  extent  and  influence 
of  such  a  state  of  mind.  So  it  is  thought,  that 
in  the  case  of  an  insane  person,  in  a  lucid  inter- 
val, it  is  a  question  difficult  to  decide,  as  to  what 
degree  of  intellect  will  be  necessary  to  enable 
him  to  give  his  evidence.  A  person  in  a  state 
of  intoxication  is  inadmissible.2 

i  Roscoe,  95.  a  Ibid.,  and  Chitty's  Grim.  Law,  588. 


390 


OF    EVIDENCE. 


CHAPTER 


Form  of  oath. 


Proper  time  to 
M  to  duHftom 


Incompetency  from  icant  of  religious  principle. 
As  the  law  requires  witnesses  to  give  their  evi- 
dence under  oath,  or  a  solemn  affirmation,  and 
thus  appealing  to  the  Deity  for  the  truth  of  their 
statements,  it  would  necessarily  follow,  that 
such  persons  as  do  not  believe  in  a  God,  and  a 
future  state  of  rewards  and  punishments,  cannot 
be  competent  witnesses,  inasmuch  as  such  ap- 
peal impresses  their  mind  with  no  obligation, 
and  cannot  possibly  be  any  tie  upon  them. 

Those  persons  therefore,  who  either  from  the 
weakness  of  their  capacities,  or  their  ignorance, 
have  no  idea  of  this  awful  sanction,  or  from  er- 
roneous speculations  deny  them,  cannot  be  ad- 
mitted to  bear  testimony  in  a  court  of  justice. 
But  it  does  not  follow,  however,  that  it  is  neces- 
sary to  acknowledge  or  profess  the  Christian 
faith,  in  order  to  become  competent  witnesses ; 
this  was  formally  the  case,  but  now  infidels  of 
whatever  particular  religion,  provided  they  be- 
lieve in  the  existence  of  a  God,  and  that  he  will 
punish  them  in  this  world  or  the  next,  if  they 
swear  falsely,  may  be  admitted  as  witnesses. 

The  form  of  oaths  under  which  God  is  in- 
voked as  a  witness,  or  as  an  avenger  of  perjury, 
is  to  be  accommodated  to  the  religious  persua- 
sion which  the  swearer  entertains  of  God. 

The  most  correct  and  proper  time  for  asking 
a  witness  whether  the  form  in  which  the  oath, 
as  about  to  be  administered,  is  one  which  will 
be  binding  on  his  conscience,  is  before  the  oath 
is  administered.  But  should  the  oath  be  admin- 
istered in  the  usual  way  before  the  attention  of 
the  court  or  counsel  is  directed  to  it,  the  party  is 
not  to  be  precluded*;  but  the  witness  may  never- 


OP    EVIDENCE.  39) 

theless  be  afterwards  asked  whether  he  consid-     CHAPTER 
ers  the  oath  he  has  taken  as  binding  upon  his        XV1[| 
conscience. 

It  is  now  a  rule  that  when  a  person  is  ten-  witness  cannot 

,  ,        .  .  ,  be  asked  as  to 

dered  as  a  witness,  and  he  is  questioned  to  as-  his  belief  in  the 

,  .  .  .  ,  .  thristian  faith. 

certain  his  competency  to  give  evidence,  in  re- 
gard to  religious  principles,  it  will  not  be  per- 
mitted to  ask  as  to  his  belief  in  the  Christian 
faith.  The  only  question  to  be  asked  is, 
whether  he  believes  in  the  existence  of  a  God, 
the  obligation  of  an  oath,  and  a  future  state  of 
rewards  and  punishments ;  or  if  he  believes  in 
a  God  who  would  punish  falsehood  either  in 
this  world  or  the  next,1 

Incompetency  from  Infamy. — Where  a  man  infamy. 
has  been  guilty  of  certain  offences  the  law  has 
declared  that  his  testimony  shall  not  be  receiv- 
ed, on  the  ground  of  infamy  of  character,  which 
the  commission  of  such  crimes  indicates.  It 
was  formerly  held,  that  where  a  man  had  under- 
gone what  was  understood  to  be  an  infamous 
punishment,  as  the  pillory — he  was  thereby  ren- 
dered incompetent  as  a  witness ;  but  this  rule 
has  been  long  abandoned,  and  it  is  now  deter- 
mined that  it  is  not  the  nature  of  the  punish- 
ment, but  of  the  offence  which  renders  his  evi- 
dence inadmissible.2 

The  crimes  which  incapacitate  the  party  com-  crimes  which 
mitting  them  from  giving  evidence  are,  treason, 
perjury,  forgery,  or  every  species  of  the  crimen 
falsij  subornation  of  perjury,  barratry,  or  bribing 
a  witness  to  absent  himself  and  not  give  evi- 
dence, and  some  others  which  need  not  be  ad- 
verted to. 

1  Hoscoe's  Grim.  Ev.,  98.  a  Ibid.,  99. 


392 


OF   EVIDENCE. 


CHAPTER 


proved. 


defend 
how 


competency. 


Pardon  does  not 
always  restore 


don. 


A  person  incompetent  to  give  oral  evidence  in 
court,  on  the  ground  of  infamy,  will  not  be  al- 
lowed  to  have  his  affidavit  read,  unless  it  be  to 
defend  himself  against  a  complaint. 

infamy  must  be  proved,  by  the  judgment  of 
the  court,  where  the  conviction  was  had,  and 
the  court  must  be  one  of  competent  jurisdiction. 
Parol  evidence  cannot  be  given  of  it,  and  though 
the  witness  himself  may  admit  that  he  was  con- 
victed of  felony,  this  will  not  render  him  incom- 
petent. It  is  not  sufficient  to  give  in  evidence, 
the  indictment  and  a  verdict  of  guilty  there- 
upon, without  proving  the  judgment,  for  judg- 
ment may  have  been  arrested.  The  judgment, 
or  an  examined  copy  of  it  must  be  produced  in 
court.  It  must  appear  that  a  person  was  con- 
victed before  a  competent  tribunal. 

When  the  party  convicted  has  suffered  the 
punishment  awarded,  he  is  again  rendered  com- 
petent except  in  cases  of  particular  crimes,  such 
as  perjury  and  subornation  of  perjury. 

The  competency  of  a  person,  whose  evidence 

J 

has  been  rendered  inadmissible  by  conviction,  is 
restored  by  pardon,  which  has  the  effect  of  dis- 
charging all  the  consequences  of  the  judgment. 
But  where  the  disability  is  not  merely  a  conse- 
quence of  the  judgment,  but  is  a  part  of  the 
judgment,  pardon  cannot  restore  competency, 
though  a  legislative  act  may. 

Where  a  convict  has  served  out  his  time,  his 
competency  may  be  restored  at  any  time  after 
by  a  pardon. 

The  executive  may  extend  his  mercy  on 
whatever  terms  he  pleases,  and  annex  to  his 
pardon  any  condition  that  he  thinks  fit,  whether 


OF    EVIDENCE.  39& 

precedent  or   subsequent,  and   on   the   perfor-     CHAPTER 
mance  of  that  condition,  the  validity  of  the  par-        XVI- 
don  will  depend.     It  must  therefore  be  proved 
that  the  condition  has  been  performed.     A  pro- 
viso in  the  pardon,  excepting  all  legal  disabil- 
ities, is  repugnant  and  void. 

It  is  thought  that  a  person  who  has  been  con-  of  foreign tri 
victed  by  a  foreign  tribunal  of  an  offence  incur- 
ring infamy,  and  pardoned  by  the  sovereign  au- 
thority in  that  country,  is  admissible  as  a  wit- 
ness here,  if  the  laws  of  the  foreign  country  al- 
lows the  competency  of  the  party  to  be  restored 
in  that  manner. 

The  competency  of  a  witness  may  be  restored  Reversal  of 

L  J  "  judgment  re- 

by  reversal   of  judgment — and  therefore,   if  a  stores  compe- 

J  J.  tency. 

conviction  and  judgment  are  read  on  the  one 
side  to  show  the  witness  incompetent,  they  may 
be  answered  on  the  other  by  reading  a  reversal 
of  the  judgment  upon  writ  of  error. 

Desertion,  though  a  high  crime,  is  not  deemed  Desertion  does 
such  an  offence  as  renders  the  one  who  has  com-  ness 

•  T  1  t  tCnt* 

mitted  it  incompetent.  It  may,  however,  be 
considered  as  affecting  the  credibility  of  the 
witness  upon  proof  of  conviction.  And  it  may 
be  observed  that  were  the  crime  such  as  to  de- 
stroy the  competency  of  the  offender,  such  in 
almost  every  case  would  be  restored,  as  the  wit- 
ness would  either  have  suffered  the  punish- 
ment awarded  for  the  offence,  or  have  received 
a  pardon. 

fncompetency  from  Interest. — It  is  not  neces-  interest 
sary  for  the  purposes  of  military  justice  to  enter 
fully  into  the  question  of  interest  which  may 
disqualify  a  witness. 

When  a  person  is  called  as  a  witness,  he  may 
50 


394  OF    EVIDENCE. 

CHAPTER  be  rejected  on  the  ground  of  a  supposed  want 
XVI>  of  integrity.  But  the  interest  must  be  such  as 
the  law  recognizes ;  and  the  bias,  arising  from 
the  witness  standing  in  the  same  situation  as 
the  party  by  whom  he  is  tendered,  is  not  suffi- 
cient. Nor  is  a  man  incompetent  because  he  is 
personally  interested  in  a  similar  question  to 
that  upon  which  he  is  called  to  give  evidence. 

Expectations—  The  expectation  of  a  benefit,  not  necessarily 
and  legally  flowing  from  the  event  of  the  pro- 
ceeding, does  not  render  a  witness  incompetent — 
as  the  promise  of  a  pardon.  So  in  prosecutions 
where  there  are  rewards,  although  the  reward 
can  only  be  the  effect  of  the  conviction,  the  pro- 
secutors are  competent  witnesses — and  yet  such 
persons  may  be  said  to  be  interested  in  the  event 
of  the  cause.  And  where  a  party  is  entitled  to 
pardon,  provided  another  offender  be  convicted 
on  his  testimony,  the  party  so  entitled  is  a  com- 
petent witness. 

Wager.  If  the  witness  lay  a  wager  that  he  will  convict 

the  prisoner,  he  is  still  competent  though  it  goes 
to  his  credit. 

Prosecutor  is  a      As  a  general  rule,  the  prosecutor  or  party  in- 
competent wit-    .        ,    .  .  .         .     .      .     J 

ness.  jured,  is  a  competent  witness  m  criminal  prose- 

cutions ;  and  this  rule  is  founded  on  reasons  of 
public  policy. 
witness  whose      A  party  whose  signature  has  been  forged  is 

signature  has  r        J 

been  forged,      now  considered  competent  for  the  prosecution, 

though  formerly  a  different  practice  prevailed. 
conviction  not       Some  of  the  cases  on  the  subject  of  the  compe- 

evidenceforthe    ,  /.       .,  ,  -,. 

witness  in  an-    tency  of  witnesses  in  criminal  proceedings,  were 

°nger  l  decided  upon  the  idea  that  the  conviction  might 

be  afterwards  evidence  for  the  witness  in  another 

proceeding ;  but  it  is  now  settled  that  the  record 


OF    EVIDENCE.  395 

of  a  conviction  will  not  be  received  as  evidence,     CHAPTER 
either  at  law  or  in  equity,  in  favor  of  the  party        XVI> 
upon  whose  testimony  the  conviction  was  pro- 
cured.1 

Informers,  or  persons  who  are  entitled,  under  informers  an 
the  general  regulations  for  the  army,  to  a  reward 
for  the  apprehension  of  deserters  are  competent 
witnesses.2 

The  evidence  of  persons  who  have  been  ac-  Evidence  of  ac« 

.  *..  ,  .  ..      complice  admiw 

complices  in  the  commission  of  the  crime  with  sibie. 
which  the  prisoner  stands  charged  is,  in  general, 
admissible  against  him ;  and  this  rule  is  founded 
on  necessity,  since  if  accomplices  were  not  ad- 
mitted, it  would  frequently  be  impossible  to  find 
evidence  to  convict  the  greatest  offenders.  In 
strictness,  there  does  not  seem  to  be  any  objec- 
tion to  the  admitting  the  witness  at  any  time 
before  conviction. 

Where  several  have  been  joined  in  the  same  where  several 
indictment,  and  the  case  has  proceeded  against  the  same  u> 
all  the  prisoners,  but  no  evidence  appears  against 
one  or  more  of  them,  the  court  will,  in  its  dis- 
cretion, upon  the  application  of  the  prosecutor, 
order  them  to  be  acquitted,  for  the  purpose  of 
giving  evidence  against  the  rest.  This  proce- 
dure cannot  be  exactly  followed  by  military 
courts,  from  the  necessity  of  subsequent  appro- 
val of  the  decision  of  the  court.  But  the  court- 
martial  might,  having  decided  one  or  more  cases, 
where  there  was  no  evidence  to  convict,  adjourn 
for  such  time  as  would  be  necessary  for  confir- 
mation, and  then  re-assemble  and  proceed  with 
the  other  cases.  Should  a  prisoner  desire  to 
avail  himself  of  the  testimony  of  one  involved  in 
1  Roscoe's  Grim.  Ev.,  106.  *  Genl.  Reg.,  Par.  123. 


396  OP    EVIDENCE. 


CHAPTER  the  same  charge,  he  would,  on  the  receipt  of  the 
copy  of  the  charges,  urge  the  necessity  of  a  sepa- 
rate trial,  to  the  authority  ordering  the  court- 


XVI. 


of  martial>  an(i  tf  not  attended  to,  an  application  to 

th^  same  tlie  COUrt  WOuld  still  be  Open.1 

charge.  An  accomplice,  not  joined  in  the  indictment, 

Person  not  .  * 

joined  in  same    IS   a    Competent  WltttCSS  for    the    prisoner,  in  COn- 

indictment  is.          ..ti  11.        i/r 

competent        junction  with  whom  he  himself  committed  the 

crime.  And  where  they  are  severally  indicted 
for  the  same  offence  the  one  may  be  called  for 
the  other.  But  persons  collectively  arraigned 
are  incompetent  for  each  other. 

Accomplice  An  accomplice,  having  the  promise  of  pardon 

nSsTof  pardon  to  give  evidence  against  a  confederate,  is  not  dis- 
abled ;  it  may  affect  his  credibility,  but  will  not 
destroy  his  competency. 

where  testimo-  A  conviction  on  the  testimony  of  an  accom- 
j^7  Is  unco£  plice,  uncorroborated,  is  legal.  His  credibility, 
and  the  probability  of  his  testimony  is  for  the 
jury  to  consider  ;  but  such  testimony  should  be 
received  with  great  caution  ;  and  the  practice  is, 
where  such  evidence  is  produced,  unsupported 
by  other  confirmatory  evidence,  to  acquit  the 
prisoner. 

Evidence  of  a  Although  in  practice,  in  order  to  give  it  effect, 
the  evidence  of  a  socius  requires  confirmation,  it 
is  obvious  that  it  cannot  be  required  to  be  con- 
firmed in  every  particular,  for  if  that  were  requi- 
site his  evidence  would  be  better  omitted  al- 
gether.2 

Accomplice  pro-  After  giving  his  evidence,  but  not  in  such  a 
way  as  to  entitle  him  to  favor,  an  accomplice 
may  still  be  indicted  for  the  same  offence  ;  and 
though  he  may  have  conducted  himself  properly, 

1  Simmons,  p.  430.  2  Roscoe's  Grim.  Ev.,  120. 


OF    EVIDENCE.  397 

he  is  liable  to  be  proceeded  against  for  other     CHAPTER 
offences  :    with  respect  to  other  offences,  there-        XVI- 
fore,  the  witness  is  not  bound  to  answer  on  his 
cross-examination. 


In  criminal,  as  well  as  in  civil  cases,  persons  Bail  i 
who  have  become  bail  are  incompetent  wit-  SS 
nesses  for  the  defence,  —  though  the  bail  may 
be  changed  to  make  them  good  witnesses.  And 
so,  likewise,  where  a  pecuniary  or  other  inte- 
rest debars  a  witness  from  giving  evidence,  the 
disability  may  be  removed  by  a  release  or  other 
proper  mode.1 

Husband  and  loife.     Husband  and  wife  are,  Husband  and 

.  i  .,  -<i          />  wife,  mutually 

in  general,  incompetent  witnesses,  either  for  or  incompetent. 
against  each  other,  on  the  ground  partly  of 
policy,  and  partly  of  identity  of  interest.  The 
circumstance  of  one  of  the  parties  being  called 
for,  or  against  the  other,  makes  no  distinction 
in  the  law.  When  admissible  against,  the  tes- 
timony is  likewise  admissible  in  favor  of  the 
other.  It  is  also  said,  that  where  the  relation  of  mere  the  con 
husband  and  wife  has  once  subsisted,  the  one  is 
inadmissible  for  or  against  the  other,  even  after 
the  relation  has  ceased,  with  respect  to  matters 
which  occurred  during  coverture.  Thus  a  wo- 
man divorced,  and  married  again,  cannot  be 
called  to  prove  a  fact  either  for  or  against  her 
former  husband  ;  —  and  this  because  the  law  had 
created  a  confidence  which  the  misconduct  of 
neither  party  should  be  permitted  to  break. 

The  lawful  husband  and  wife  only  are  ex-  The  marriage 
eluded  ;  therefore,  for  instance,  on  an  indictment  tomlk^thTp 
for  bigamy,  after  proof  of  the  first  marriage,  the  *enst)ncompe' 
second  wife  is  a  competent  witness  against  the 

i  Roscoe's  Grim.  Ev.,  111. 


OF    EVIDENCE. 

CHAPTER     husband,   for  the  marriage  is  void.      So  the 

XYL  taking  away  and  marrying  a  woman  contrary 

to  her  will,  will  not  make  her  an  incompetent 
witness  against  the  husband;  for  acts  of  vio- 
lence are  void  in  law.  But  if  she  afterwards 
assent  to  the  marriage,  by  a  free  cohabitation 
with  him,  she  would  not  be  admitted  as  a 
witness. 

A  woman  who  has  cohabited  with  a  man 
as  his  wife,  but  is  not  so  in  fact,  is  a  competent 
witness  for  or  against  him. 
cases  where          it  is  not  in  every  case  in  which  the  husband 

the  husband  an] 

wife  are  not      or  wife  may  be  concerned,  that  the  other  is  pre- 

precluded.  J  ' 

eluded  from  giving  evidence.  The  rule  seems 
to  be  now,  that  where  the  evidence  of  the  wife 
did  not  directly  criminate  the  husband,  and 
never  could  be  used  against  him,  and  where 
the  judgment  founded  upon  such  evidence  could 
not  affect  him,  the  evidence  was  admissible.1 

Upon  the  same  principle,  where  the  husband 
or  wife  has  been  called  by  one  party,  the  wife 
or  the  husband  may  be  called  by  the  other,  to 
contradict  the  statement,  for  no  advantage  can 
be  taken  against  either  party  of  the  contradic- 
tory testimony  thus  given.2  Thus  it  has  been 
ruled,  that  a  wife  may  be  a  witness,  in  an  ac- 
tion between  third  persons,  not  immediately  af- 
fecting the  interests  of  the  husband,  though  her 
evidence  may  possibly  expose  him  to  a  legal 
demand.  But  she  would  not  be  admitted  as  a 
witness,  nor  could  her  evidence  in  the'  first  suit 
be  produced  against  her  husband,  if  an  action 
should  be  brought  against  him. 

There  are  exceptions,  however,  to  the  general 

i  Roscoe's  Grim.  Ev.,  113.  s  Ibid. 


OP    EVIDENCE. 


rule  which  regulates  the  competency  of  husband     CHAPTER 

and  wife  as  witnesses  for  each  other,  which  ne- ^Ii 

cessity  and  strict  justice  demand. 


A   wife,   therefore,   is   a    competent  witness  ™le- 

Competent  in 

against  her  husband,  in  respect  to  any  charge 
which  affects  her  liberty  or  person.  Thus  in 
trials  where  the  crime  is  a  violence  done  by  one 
against  the  person  of  the  other,  the  wife  may  be 
a  witness  against  the  husband,  and  the  husband 
against  the  wife.1 

The  rule  last  stated  is  one  which  necessity 
has  introduced,  though  the  principle  seems  to 
have  been  lost  sight  of  in  a  case  which  occurred 
in  1840-1. 

Lieut.  T.,  of  the  Artillery,  was  arraigned  be-  Erroneous  pra« 
fore  a  general  court-martial  which  assembled  at 
Detroit,  upon  a  charge  of  "  conduct  unbecoming 
an  officer  and  a  gentleman,"  and  among  other 
facts  specified,  he  was  charged  with  violence 
towards  his  wife,  by  striking,  &c.  In  relation 
to  this  particular  part  of  the  accusation,  the  pris- 
oner, in  his  defence,  presented  his  wife  as  a  wit- 
ness, who  was  immediately  objected  to  as  being 
incompetent  to  testify  in  the  case.  The  question 
was  argued  on  the  part  of  the  prosecution,  and 
also  on  the  defence,  and  the  court  having  taken 
some  time  for  deliberation,  finally  decided  to  ad- 
mit the  witness,  and  she  was  accordingly  sworn, 
and  gave  in  her  evidence,  which  was  a  positive 
denial  of  the  act  charged  against  her  husband. 

It  is  thought  that  in  this  case  the  court-mar- 
tial violated  the  rule  of  evidence,  which  ex- 
cludes husband  or  wife,  where  the  other  is  a 

>  Roscoe's  Grim.  Ev.,  114 — and  Note  to  1  Inst.,  Book  I.,  ch.  x^ 
p.  137. 


400 


OF    EVIDENCE. 


CHAPTER  party.  It  is  true  that  the  exception  named 
Tn'  above,  would  permit  the  evidence  of  the  wife 
where  the  suit  is  against  her  husband  for  vio- 
lence offered  to  her  person ;  yet  it  is  to  be  re- 
membered, that  it  is  also  when  the  object  of  the 
prosecution  is  for  her  safety,  and  not  in  cases  in 
which  the  question  of  fact  may  be  incidentally 
noticed  to  substantiate  another  charge.  The 
purpose  of  the  trial,  to  which  reference  is  now 
made,  was  not  for  the  vindication  of  the  personal 
rights,  or  personal  safety  of  Mrs.  T.,  but  simply 
for  the  preservation  of  military  morals,  good  or- 
der and  discipline.  The  high  interests  that  she 
had  for  the  exculpation  of  her  husband,  ought 
not  to  have  been  tempted  on  the  one  hand,  nor 
the  confidence  of  conjugal  life  permitted  to  be 
violated  on  the  other. 
NO  relation  but  No  other  relation  but  that  of  husband  and 

that  of  husband  .    . 

and  wife  ex-      Wife,  CXClUdCS    frOHl    SlVUiS    CVldenCC  ]    tllC    testl- 

cludes.  .  7  .  , 

timony  may  be  suspicious,  but  the  witness  not 
incompetent. 

Servant  A  servant  is  a  competent  witness  for  or 

against  his  master,  he  having  no  direct  interest ; 
but  in  a  prosecution  against  a  master,  from  the 
neglect  of  the  servant,  the  servant  is  not  compe- 
tent, as  he  may  subsequently  be  proceeded 
against  by  the  master,  in  an  action  for  damages 
for  the  neglect.1 

Disability  of          There  is  a  species  of  disability  to  give  evidence, 

counsel.    Inter-         ,  .    ,  i      /.  i    ,  • 

which  arises  merely  from  a  temporary  relation, 
and  is  confined  in  its  effects  to  the  circumstances 
disclosed  under  its  sanction.  It  arises  from  the 
situation  in  which  a  counsel  or  attorney  stands 
to  his  client,  and  the  confidence  which  is  neces- 

1  Phillips'  Ev. 


OF    EVIDENCE. 


sary  for  every  one  to  repose  in  his  legal  advi-  CHAPTER 
sers.  The  law  will  not  therefore  compel,  nor  XYI> 
even  suffer  those  who  are  thus  employed,  to  dis- 
close any  facts  stated  to  them  confidentially  in 
the  way  of  their  profession,  even  after  the  cause 
is  entirely  concluded.  An  attorney  is  not  bound 
to  obey  a  subpoena  duces  tecum,  to  produce  pa- 
pers against  his  client,  on  an  indictment  for  per- 
jury. The  retainer  for  a  counsel  for  a  cause,  is 
in  the  nature  of  a  privileged  communication. 
And  this  rule  extends  also  to  an  interpreter  who 
may  be  employed,  on  the  part  of  one  ignorant 
of  the  language,  to  communicate  his  instructions 
to  his  attorney.  And  the  rule  applies  to  all 
cases  where  the  party  applies  for  professional 
advice ;  and  it  also  extends  to  facts  which  the 
attorney  becomes  acquainted  with  in  the  char- 
acter of  an  attorney,  although  the  communica- 
tion was  not  made  by  the  client, — such  as  com- 
munications made  by  third  persons,  who  accom- 
panied the  client  when  he  came  to  consult  the 
attorney ;  and  to  the  contents  of  a  written  in- 
strument, which  he  has  by  delivery  from  his 
client. 
But  this  indulgence  does  not  apply  to  cases  Privilege  does 

•  |  .  -,  i  „        .         ,  not  extend  to 

where  the  witness,  though  a  professional  man,  friends,  coun- 

11  i  /..-I         .1  i     •          selto  give  evi- 

was  consulted  merely  as  a  friend,  without  being  dence  when  - 
engaged  to  conduct  the  proceedings.  Or  where 
a  person  has  been  consulted  on  the  supposition 
that  he  was  a  solicitor.  Counsel  may  be  re- 
quired to  give  evidence  of  anything  which  they 
knew  before  being  retained,  and  of  that  which 
was  communicated  after  the  retainer  had  ceased.1 
If  a  counsel  or  attorney  be  called  as  a  witness 

»  RoBcoe's  Crim.  Ev.,  144, 145. 
51 


4U2  OP    EVIDENCE. 

CHAPTER     by  his  client,  he  is  not  protected  from  cross-ex- 
XVIt        animation  as  to  the  point  upon  which  he  has 
S-w^xaSinld.  keen  examined  in  chief,  although  it  was  matter 
of  confidential  communication.    But  such  cross- 
examination  must  be  confined  to  the  same  mat- 
ter, and  must  not  extend  to  other  points  in  the 
same  cause.1 
Negroes,  as  tc       There  is  another  class  of  persons,  in  relation 

the  competency  ' 

of-  to  whom  questions  of  competency  have  arisen 

before  courts-martial.  These  persons  are  ne- 
groes, or  of  African  blood  ;  and  it  was  upon  such 
grounds,  that  the  objections  to  their  competency 
were  based. 

*»ofDr.Fd-      In  the  case  of  Doctor  B.  F.  Fellows,  assistant 

ows,  U.  S.  A. 

surgeon  in  the  army,  who  was  tried  at  Fort  Ni- 
agara, N.  Y.,  October  1838,  this  question  arose. 
In  the  course  of  the  defence,  the  accused  pre- 
sented a  coloured  person  to  be  sworn  as  a  wit- 
ness, upon  which  a  member  of  the  court  objected 
to  him  as  being  incompetent. 

The  judge  advocate  remarked  briefly,  that  the 
person  proffered  as  a  witness,  was  certainly 
competent,  and  if  any  objection  was  to  be  made 
to  him,  it  could  only  go  to  his  credit. — That  nei- 
ther the  laws  of  the  United  States,  nor  those 
of  the  state  of  New  York  excluded  such  evi- 
dence, and  that  therefore  the  court-martial,  un- 
less other  objections  to  his  competency  than  the 
one  urged  was  presented,  must  also  receive  it. 

The  court  being  cleared,  it  was  decided  after 
due  deliberation,  that  the  person  was  a  compe- 
tent witness,  and  he  was  accordingly  sworn. 
The  proceedings  of  this  court  were  afterwards 
approved 

1  Chitty's  Crim.  Law,  pp.  605,  6,  7. 


OF    EVIDENCE.  403 

Another  case  which  excited  considerable  in-     CHAPTER 
terest,  and  which  was  made  the  subject  of  grave        XVI> 
deliberation  by  one  of  the  executive  departments 
of  the  government,  arose  in  the  naval  service  in 
the  following  year.     It  was  as  follows  :-  — 


Lieutenant  George  Mason  Hooe.  of  the  U.  S.  £ase  0TfTLje^ 

'  Hooe,  U.  S.  N. 

Navy,  was  tried  on  board  the  U.  S.  ship  Mace- 
donian, in  the  Bay  of  Pensacola,  on  the  18th  of 
March,  1839.  In  the  course  of  the  trial,  one  or 
more  negroes,  seamen  in  the  service  of  the 
United  States,  were  sworn  on  the  part  of  the 
prosecution  and  gave  evidence.  To  these  wit- 
nesses the  defendant  objected,  that  by  the  laws 
of  Florida,  such  persons  (coloured,)  were  not 
competent  to  testify  against  a  white  person  ;  the 
objection,  however,  was  overruled  by  the  court- 
martial.  The  trial  having  been  completed,  and 
sentence  pronounced,  Lieutenant  Hooe  appealed 
to  the  navy  department,  urging  the  same  objec- 
tion, as  sufficient  to  vitiate  the  proceedings,  or 
annul  the  judgment  of  the  court.  The  subject 
being  one  which  awakened  the  feelings  of  many 
persons,  as  a  question  of  right  flowing  from  the 
institution  of  slavery  as  acknowledged  in  some 
of  the  states,  it  soon  became  a  theme  of  public 
and  political  discussion,  and  under  such  circum- 
stances the  question  was  referred  for  decision  to 
Mr.  Gilpin,  attorney  general  of  the  United  Opinion  of  At. 

.-,  mi  •          rr»  i  i       •  torney  General, 

States.     This  omcer  decided  —  "that  the  testi-  Mr. 
mony  given  by  the  negroes  was  not  material  to 
the  finding  of  the  court,  and  therefore  considered 
the  inquiry  in  regard  to  the  objection  itself  un- 
necessary."1 

It  will  be  perceived  that  the  opinion  given 

1  Opinions,  p.  1315.     April  27,  1840. 


404 


OF    EVIDENCE. 


CHAPTER 
I VI. 


Opinion  of  U.S 
District  Attor 
ny.  F.  S.  Key. 


above  avoided  entirely  the  direct  question,  and 
was  based  upon  a  principle  of  the  law  of  evi- 
dence, which  required  no  reference.  The  de- 
cision consequently  left  the  question  as  open  as 
before.  In  the  absence  of  the  attorney  general, 
the  question  of  the  competency  of  the  negroes 
was  referred  to  the  district  attorney  of  the 
United  States  for  the  District  of  Columbia,  the 
late  Francis  S.  Key,  Esq.  In  the  opinion  then 
given,  Mr.  Key  said : — 

"  The  accused  objected  that  by  the  laws  of 
Florida,  where  the  court-martial  was  held,  such 
persons  (coloured,)  are  not  competent  to  testify 
against  a  white  person;  and  he  therefore  con- 
tended that  they  should  be,  in  like  manner,  ex- 
cluded from  testifying  on  courts-martial.  Such 
a  consequence  would  not  follow  from  the  law  of 
Florida.  The  officers  composing  the  court  were 
bound  to  admit  the  witness,  unless  some  legal 
disqualification  was  shown.  This  could  only  be 
by  a  law  of  congress.  Whether  it  be  right  that 
there  should  be  a  law  requiring  courts-martial 
of  the  United  States  to  reject  all  such  witnesses 
as  are  disqualified  by  the  laws  of  the  state  or 
territory  where  the  court  may  be  held,  is  a  ques- 
tion for  congress  alone.  Till  they  enact  the  dis- 
qualification, it  cannot  be  enforced."1 

The  proceedings  of  the  court-martial  in  this 
case  were  approved ;  and  so  far  therefore  as  the 
action  of  the  department,  and  the  opinion  of  the 
law  officer  of  the  government  may  be  con- 
sidered, the  question  has  been  determined. 

As  it  is  a  subject  upon  which  the  minds  of 

i  See  Document  No.  244,  House  of  Representatives,  Navy  De- 
partment, 26th  Congress,  1st  Session. 


OF    EVIDENCE.  405 

many  persons  in   the   free   and   slave   holding     CHAPTER 
states   are  directly  at  variance,  and   one   also        XVIt 
which  from  the  circumstances  attending  slavery  Ceding  Km 
at  the  present  day,  cannot  be  approached  with-  mende3- 
out  more  or  less  danger,  certainly  of  agitation 
and  violence,  the  writer  would  not  recommend 
a  course  of  procedure  by  courts-martial  either 
in  accordance  with,  or  in  direct  opposition  to  the 
views   expressed  in    the    above   opinion ;    but 
would  leave  it  for  the  discretion  of  the  courts 
themselves,  to  be  governed  by  the  same  rules 
which  regulate  the  United  States  ordinary  courts 
of  law,  and  which  are  in  unison  with  the  laws 
of  evidence  of  the  particular  states  or  territories 
in  which  they  may  be  held. 

Credibility  of  witnesses.  Where  a  witness  is  credibility  of 
not  incompetent  by  reason  of  falling  within  some 
of  the  rules  which  have  been  treated  of  in  the 
foregoing  pages,  he  may  nevertheless  not  be  en- 
titled to  full  credit,  and  therefore  his  integrity  as 
such  may  be  impeached.  This  may  be  done 
by  disproving  the  facts  stated  by  him,  by  cross- 
examination,  by  producing  the  record  of  his  con- 
viction for  some  crime,  or  by  showing  by  his 
general  character  that  he  is  unworthy  of  being 
believed  on  oath.  It  is  obvious  that  though  a 
pardon,  or  the  endurance  of  the  punishment 
may  restore  the  competency  of  a  witness,  yet  it 
cannot  operate  with  equal  conclusiveness  to  re- 
trieve his  credibility ;  the  proof  of  the  convic- 
tion of  crime,  may  more  or  less  influence  the  de- 
gree of  confidence  to  be  placed  in  his  testimony. 

The  credit  of  a  witness  cannot  be  impeached, 
as  to  particular  parts  of  his  conduct,  by  other  «»*«»••• 
witnesses,  but  by  reference  to  his  general  char- 


406 


OF    EVIDENCE. 


CHAPTER 

XVI. 


Impeachment 
by  evidence  of 
general  char- 
acter. 


Opposite  party 
may  cross-ex 
amine. 


Examination  of 
witnesses,  pro- 
per time  to  ob- 
ject. 


acter :  and  this  upon  the  ground,  that  it  cannot 
be  expected  that  a  man  is  prepared  to  answer 
for  particular  acts  without  notice. 

Statements,  or  a  letter  written,  or  a  depositioi 
signed  by  a  witness  at  a  former  time,  may  be 
used  to  contradict  the  testimony  given  by  him ; 
but  the  conviction  before  a  magistrate,  purport- 
ing to  set  out  the  deposition  of  a  witness  is  not 
evidence  for  this  purpose,  because  the  recital  of 
it  may  be  erroneous. 

When  it  is  intended  to  impeach  a  witness  by 
evidence  of  his  general  character,  the  usual 
manner  is,  to  inquire  whether  the  witnesses 
have  the  means  of  knowing  it,  and  whether 
from  such  knowledge  they  would  believe  him 
on  oath. 

The  party  whose  witness  is  impugned,  may 
cross-examine  as  to  the  grounds  for  such  opinion, 
or  the  opportunities  which  have  been  presented 
for  judging :  and  these  questions  being  replied 
to  generally,  a  further  cross-examination  into 
particular  instances  is  admissible.  The  party 
impeached  may  also  bring  evidence  to  rebut  the 
attack,  or  to  attack  the  character  of  the  impeach- 
ing witness.1 

Examination  of  witnesses.  The  proper  time 
to  object  to  the  competency  of  a  witness  is, 
when  he  is  called,  and  before  being  sworn ;  al- 
though, in  general,  the  competency  of  a  witness 
may  be  objected  at  any  stage  of  a  case.  A  party 
who  is  cognizant  of  the  interest  of  a  witness,  at 
the  time  he  is  called,  is  bound  to  make  his  ob- 
jection in  the  first  instance.  After  a  witness 
has  been  examined  and  cross-examined,  and  has 

1  Phillips'  Ev 


OP   EVIDENCE.  407 

left  the  box,  and  is  recalled  for  the  purpose  cf  CHAPTER 

having  a  question  put  to  him,  it  is  too  late  to  ob-  *VI*  s 
ject  to  his  competency.1 

The  party  against  whom  a  witness  is  called,  Examination  <m 

r     .          ,  .  .      .  '    the  voir  dire. 

may  examine  him  respecting  his  interest  on  the 
voir  dire,  or  may  call  other  witnesses,  or  offer 
other  evidence  in  support  of  the  objection  ;  the 
rule  being  now,  that  if  the  interest  be  satisfac- 
torily proved  the  witness  will  be  incompetent, 
though  he  may  have  ventured  to  deny  it  on  the 
voir  dire.  These  examinations  on  the  voir  dire, 
however,  relate  more  generally  to  civil  cases.2 

When  the  witness  has  been  sworn,  he  is  ex-  Examination  in 
amined  in  chief  by  the  party  calling  him,  and  it  SSkms.'"1111* 
is  a  general  rule  that  leading  questions  shall  not 
be  put  to  him  by  such  party.     But  it  is  within 
the  discretion  of  the  court  to  admit  such,  for  at 
times  it  would  be  impossible  to  come  t9  the  di- 
rect object  in  view ;  and  it  is  necessary,  to  a  cer- 
tain extent,  to  lead  the  mind  of  the  witness  to 
the  subject  of  inquiry.  * 

The  propriety  of  allowing  leading  questions, 
in  order  to  establish  a  contradiction,  has  been 
questioned,  and  it  is  said  that  the  most  proper 
course  is,  to  ask  the  witness  who  is  called  to 
prove  a  contradictory  statement  made  by  an- 
other witness,  what  that  other  witness  said  rela- 
tive to  the  transaction  in  question,  or  what  ac- 
count he  gave ;  and  not  in  the  first  instance  to 
ask  in  the  leading  form,  whether  he  said  so  or 
so,  or  used  such  and  such  expressions.3 

Where  a  witness  examined  in  chief,  by  his  Examination  of 
conduct  in  the  box  shows  himself  decidedly  ad- 
verse  to  the  party  calling  him,  it  is  in  the  discre- 

»  Roscoe,  124.  « Ibid.,  125.  •  Ibid.,  127. 


408 


OF    EVIDENCE. 


CHAPTER 
XVI. 


Form  of  cross- 
examination. 


Irrelevant  ques- 
tions.   Witness 
not  bound  to 
answer. 


tion  of  the  court  to  allow  him  to  be  examined, 
as  if  he  were  on  cross-examination.  But  if  he 
stands  in  a  situation  which,  of  necessity,  makes 
him  adverse  to  the  party  calling  him,  it  was 
held  that  the  party  may,  as  a  matter  of  right, 
cross-examine  him.  Somewhat  similar  to  this, 
is  the  question  whether,  where  a  witness,  called 
for  one  party,  is  afterwards  called  for  the  other, 
the  latter  party  may  give  his  examination  the 
form  of  a  cross-examination — and  it  has  been 
held  that  he  may ;  for  having  been  originally  ex- 
amined as  the  witness  of  one  party,  the  privi- 
lege of  the  other  to  cross-examine  remains 
through  every  stage  of  the  case.  This,  how- 
ever, has  been  questioned  by  some.1 

The  form  of  the  cross-examination  depends, 
in  a  great  degree,  like  that  of  an  examination  in 
chief,  upon  the  bias  and  disposition  evinced  by 
the  witness  under  interrogation.  Should  he 
appear  adverse  to  the  cross-examining  party, 
great  latitude  with  regard  to  leading  questions 
may  be  admitted.  *  It  has  been  said,  "  you  may 
lead  a  witness  upon  cross-examination,  to  bring 
him  directly  to  the  point  as  to  the  answer ;  but 
you  cannot  go  the  length  of  putting  into  the 
witness's  mouth,  the  very  words  he  is  to  echo 
back."2 

Irrelevant  questions  will  not  be  allowed  to  be 
put  to  a  witness  on  cross-examination,  although 
they  relate  to  facts  opened  by  the  other  side,  but 
not  proved  in  evidence.  Nor  will  such  ques- 
tions be  allowed  to  be  put  for  the  purpose  of  dis- 
crediting the  witness  by  calling  other  witnesses 
to  contradict  him.  The  witness  is  not  bound  to 

Roscoe's  Ev.,  127,  and  note,  p.  128.  »  Ibid. 


OP   EVIDENCE.  409 

answer  irrelevant  questions,  but  if  he  does,  he     CHAPTER 
may  be  contradicted. 


docu- 
not 
sworn. 


Counsel  cannot  assume  that  a  witness  has  cannot  assume 

,  ,  .  .  .         ,  .    ,.    a  statement  or 

made  a  statement  on  his  examination  m  chief,  fact  not  in  proof 
which  he  has  not  made,  or  put  a  question  which 
assumes  a  fact  not  in  proof.1     Where  a  witness  witness 
is  called  to  produce  a  document,  and  he  is  not  meft  and 
sworn,  he  is  not  subject  to  cross-examination. 

A  re-examination,  which  is  allowed  only  for 
the  purpose  of  explaining  any  facts  which  may 
come  out  on  cross-examination,  must  of  course 
be  confined  to  the  subject  matter  of  the  cross- 
examination  ;  and  therefore  all  questions  which 
may  be  proper  to  draw  out  an  explanation  of 
the  sense  and  meaning  of  the  expressions  used 
by  the  witness,  if  they  be  in  themselves  doubt- 
ful, and  also  the  motive  by  which  the  witness 
was  induced  to  use  those  expressions,  will  be  ad- 
missible.2 

A  witness  cannot  be  compelled  to  answer  any  witness  not  tc 
question  which  has  a  tendency  to  expose  him  to  tionTsubje^ting 
a  penalty,  or  to  any  kind  of  punishment,  or  to  a  himt°PenaltiC8- 
criminal  charge.     And  thus  an  accomplice  who 
is  admitted  to  give  evidence  against  his  associ- 
ates, though  bound  to  confess  the  whole  of  the 
subject  matter  of  the  prosecution,  is  not  bound 
to  answer  with  respect  to  his  share  in  other  of- 
fences, in  which  he  was  not  connected  with  the 
prisoner,  for  he  is  not  protected  from  a  prosecu- 
tion for  such  offences. 

It  is  not  necessary,  in  order  to  render  the 
question  objectionable,  that  it  should  directly 
criminate  the  witness ;  it  is  sufficient  if  it  has  a 
tendency  to  do  so.  The  witness  and  not  the 

i  Roscoe,  127,  128.  2  Ibid.,  128. 

52 


410 


OF    EVIDENCE. 


CHAPTER 
XVI. 

Court  to  in- 
struct the  wit- 
ness. 


Witness  to 
judge  for  him- 


Whether  cer- 
tain questions 
can  be  put 
which  tend  to 
criminate  the 
witness. 


court,  is  the  proper  judge  whether  a  question 
.  put  to  him  has  a  tendency  to  criminate  him. 
The  court  will  instruct  him  to  enable  him  to  de- 
termine, and  will  judge  whether  any  direct  an- 
swer to  the  question  which  may  be  proposed, 
will  furnish  evidence  against  the  witness.  If 
such  answer  would  furnish  a  fact,  which  forms 
an  essential  link  in  the  chain  of  testimony 
which  would  be  sufficient  to  convict  him  of  any 
crime,  he  is  not  bound  to  answer  it  so  as  to  fur- 
nish matter  for  that  conviction.  The  witness 
must  judge  for  himself,  and  if  he  say  on  oath 
that  he  cannot  answer  without  accusing  himself, 
he  cannot  be  compelled  to  answer.1 

Whether  questions,  the  answer  to  which 
would  expose  the  witness  to  punishment,  ought 
not  to  be  allowed  to  be  put,  or  whether  the  wit- 
ness ought  merely  to  be  protected  from  answer- 
ing such  questions,  does  not  appear  to  be  set- 
tled. Contradictory  judicial  decisions  have  been 
made  on  this  subject.  Upon  principle  it  would 
seem  that  questions  tending  to  expose  the  wit- 
ness to  punishment  may  be  put,  as  well  as  ques- 
tions tending  to  degrade  his  character.  The 
ground  of  objection  in  the  first  case  is  not  that 
the  question  has  a  tendency  to  degrade  him,  but 
that  advantage  may  be  taken  of  his  answer  in 
some  future  proceeding  against  him,  and  the 
rule  that  no  person  is  bound  to  accuse  himself 
is  urged.  This  objection,  however,  is  completely 
removed  by  permitting  the  witness  not  to  an- 
swer the  question,  for  his  silence  would  not  in 
any  future  proceeding  be  any  admission  of  guilt, 
The  question  may  then  be  regarded  as  one  sim 

i  Roscoe,  130,— Burr's  Trial,  245. 


OF    EVIDENCE.  411 


ply  tending  to  degrade  the  witness,  and  would     CHAPTER 
come  within  the  rule  which  appears  to  be  now        XVI> 


well  established,  that  it  may  be  put,  though  the  { 
witness  is  not  compellable  to  give  an  answer,  or 
that  if  he  does  give  an  answer,  the  party  exam-  JJ5Kjfable  to 
ining  him  must  be  satisfied  with  it.1 

If  the  witness  answers  questions  on  the  exam-  witness  bound 

•  •    «    .        T  ••  i  '          ii»  i_       to  answer  on 

ination  in  chief,  tending  to  criminate  himself,  he  the  cross-exam- 

.  i  ,•  ination. 

is  bound  to  answer  on  the  cross-examination, 
though  the  answer  may  implicate  him  in  a 
transaction  affecting  his  life.  So  if  the  witness 
begins  to  answer,  he  must  proceed.  And  if  a 
witness  is  cautioned  that  he  is  not  compellable 
to  answer  a  question  which  may  tend  to  crim- 
inate him,  but  chooses  to  answer  it,  he  is  bound 
to  answer  all  questions  relative  to  that  transac- 
tion.2 

If  the  -witness  voluntarily  state  a  fact,  he  is  Bound  tc  state 
bound  to  state  how  he  knows  it,  though  it  crim-  &°Sct.R 
inate  him.3 

Where  a  witness  is  entitled   to  decline  an-  when  a  wit- 

-,    -,  j      T          jv  1  ness  declines 

swenng  a  question,  and  does  decline,  the  rule  is  answering,  to 

.   i  .  .  i  have  no  effect 

said  to  be,  that  his  not  answering  can  have  no  with  the  jury. 
effect  with  the  jury.4 


The  privilege  of  objecting  to  a  question,  tend- 
ing  to  subiect  the  witness  to  penalties  or  punish-  ject  to  answer- 

*  ii  WS  a  question. 

ment,  belongs  to  the  witness  only,  and  ought  not 
to  be  taken  by  counsel,  who  will  not  be  allowed 
to  argue  it.  The  privilege  is  personal.5 

Whether  a  witness  is  bound  to  answer  ques-  if  a  witness  u 

,.  i       i  •         •  -,i.i      bound  to  an- 

tions  tending  to  degrade  him,  is  a  point,  which  swercenamda 
has  been  differently  judged.    As  such  questions  0 

are  put  for  the  purpose  of  discrediting  a  witness, 

1  Roscoe's  Ev.,  131.  s  Ibid.,  132.  3  Ibid. 

<  Ibid.  s  Ibid.,  133. 


412  OF    EVIDENCE. 

CHAPTER  the  doubt  only  exists  where  the  questions  put 
*VI<  are  not  relevant  to  the  matter  in  issue,  but  are 
merely  propounded  for  the  purpose  of  throwing 
light  on  the  witness's  character ;  for  if  the  trans- 
actions to  which  the  witness  is  interrogated  form 
any  part  of  the  issue,  he  will  be  obliged  to  give 
evidence,  however  strong  it  may  reflect  upon  his 
character.  There  seems  to  be  some  difficulty  to 
fix  a  rule  on  this  subject ;  for  if  witnesses  were 
always  protected  in  such  cases,  that  is,  from 
questions  which  may  degrade  them,  many  an 
innocent  man  might  suffer.  And  on  the  other 
hand,  if  they  were  always  compelled  to  answer 
such  questions,  it  might  prove  an  injury  to  the 
administration  of  justice,  by  allowing  persons 
who  came  to  do  their  duty  to  the  public,  to  be 
subjected  to  improper  investigation.  The  rule 
does  not  exclude  the  question,  but  merely  de- 
cides that  the  witness  is  not  bound  to  answer, 
where  such  questions  are  not  relevant  to  the 
matter  in  issue.1 

Witnessmaking          Where  a  witttCSS    IS    Called,  and    makes    State- 
statements  not 

expected.         mcnts  contrary  to  those  which  are  expected  from 

him,  the  party  calling  him  may  prove  the  facts 

A  party  cannot  in  question  by  other  witnesses.     A  party  calling 

discredit  his  •  -, 

own  witness  by  a  witness  cannot  be  allowed  afterwards  to  dis- 

eencral  evi-  .        .  . 

dence.  credit  him  by  general  evidence  that  he  is  not  to 

be  believed  on  oath.  It  does  not  appear  to  be 
well  settled  whether  a  party,  calling  a  witness 
who  gives  evidence  contrary  to  what  is  expect- 
ed from  him,  may  prove  contradictory  state- 
ments previously  made  by  the  witness.2 

Examination  as       As  to  examination  of  opinion,  the  rule  in  gen- 

to  matters  of  °     . 

opinion.          eral  is,  that  a  witness  cannot  be  asked  what  his 

1  Rescue's  Ev.,  134,  135.  «  Ibid.,  136. 


OF   EVIDENCE.  413 

opinion  upon  a  particular  question  is,  since  he  is     CHAPTER 
called  for  the  purpose  of  speaking  as  to  facts       XYI< 
only ;  yet,  where  matter  of  skill  and  judgment 
is  involved,  a  person  competent  to  give  an  opin- 
ion may  be  asked  what  that  opinion  is.1 

Professional  men  are  to  state  facts  and  opin-  Professional 

• .  i  •       .  i  /.   ,  i  /.        .  men,  state  facts 

ions  within  the  scope  of  their  professions,  not  to  and  opinions 
give  opinions  on  things  of  which  the  court  can  mm  of  their 

,  •    •      ,        o  professions. 

as  well  judge/ 

i  Roscoe's  Ev.,  136.  2  Ib.,  note,  146. 


APPENDIX. 


No.  1. 

» 

Form  of  Order  for  Convening  a  General  Court-Martial. 


General  Orders, 
No. 


Adjutant  General's  office, 

Washington,  January  5th.  184 


A  general  court-martial  will  assemble  at ,  at  10  o'clock, 

A.  M.,  the  10th  instant,  or  as  soon  thereafter  as  practicable,  for 
the  trial  of and  such  prisoners  as  may  be  brought  before  it. 


1.  Col.  A.  B. 

2.  Col.  N.  M. 

3.  Major  W.  C.    . 

4.  Major  T.  O. 

5.  Captain  S.  B.  . 

6.  Captain  W.  L. 

7.  Captain  N.  S. 


Detail  for  the  Court. 

1st  Regiment  of  Artillery. 
.     2nd  Regiment  of  Dragoons. 
2nd  Regiment  of  Infantry. 
.  "      .     5th  Regiment  of  Infantry. 
,.;#         .         1st  Regiment  of  Artillery. 
.     2nd  Regiment  of  Artillery. 
.-,      £  .     4th  Regiment  of  Infantry. 


8.     &c.  &c.  &c. 

Captain  S.  W.,  of  the  2nd  Regiment  of  Artillery  is  appointed 
the  Judge  Advocate  for  the  Court. 

Should  any  of  the  officers  named  in  the  detail  be  prevented  from 
attending  at  the  time  and  place  specified,  the  court  will  neverthe- 
less proceed  to,  and  continue  the  business  before  it,  provided,  the 
number  of  members  present  be  not  less  than  the  minimum  pre- 
scribed by  law ; — the  above  being  the  greatest  number  [when  the 
court  is  composed  of  less  than  thirteen  members]  that  can  be  con- 
vened without  manifest  injury  to  the  service.  [This  last  sen- 
tence to  be  always  inserted  in  the  like  case.] 

By  command  of  Major-General  S. 

R.  J. 
Adjutant-General. 


416 


APPENDIX. 


No.  2. 


Form  of  Order,  or  Precept,  for  Convening  a  Naval  General 
Court-Martial. 

Navy  Department,  January  5th,  184 

By  virtue  of  the  authority  contained  in  the  Act  of  Congress, 
"  for  the  better  government  of  the  Navy  of  the  United  States," 
approved,  April  23,  1800,  a  Naval  General  Court-Martial  is  hereby 

ordered  to  convene  at ,  on  board  the  United  States  ship 

,  on  the  1st  day  of  February  184-,  or  as  soon  thereafter 

as  practicable,  for  the  trial  of (or)  of  such  persons  as  may 

be  legally  brought  before  it. 

The  Court  will  be  composed  of  the  following  officers ; — any  five 
of  whom  are  empowered  to  act,  viz. 
Captain  W.  C.  B. 
Captain  D.  T. 
Captain  W.  B. 
Captain  G.  R. 
Commander  H.  W.  O. 
Commander  S.  L.  M. 
Lieutenant  B.  D. 
Lieutenant  F.  B.  O. 

And  W.  N.  R.  of is  hereby  appointed  the  Judge  Advocate. 

A.  P.  U. 
Secretary  of  the  Navy. 

No.  3. 
Form  of  the  Proceedings  of  a  General  Court-Martial. 

Proceedings  of  a  General  Court-Martial  convened  at by 

virtue  of  the  following  order,  viz : — 

(Here  insert  the  order.} 

o'clock,  A.  M.,  January  10,  184 

The  Court  met  pursuant  to  the  above  order : — Present. 
Col.  A.  B.      r^f...     .        f        1st  Regiment  of  Artillery. 
Col.  N.  M.           *        .        .    2nd  Regiment  of  Dragoons. 
Major  W.  C.    .         .       . ,_:     2nd  Regiment  of  Infantry. 
Major  T.  O.        .     ,   .-•* ,     .    5th  Regiment  of  Infantry. 
Captain  S.  B.  .         .         .         1st  Regiment  of  Artillery. 
&c.  &c.  .         .         . 


APPENDIX.  417 

Captain  S.  W.,  2nd  Regiment  of  Artillery,  Judge  Advocate. 

Captain  S.  M.,  1st  Regiment  of  Infantry,  the  accused,  also  pre- 
sent. 

The  Judge  Advocate  having  read  the  order  convening  the  court, 
asked  the  accused,  Captain  S.  M.,  if  he  had  any  objection  to  any 
member  named  therein,  to  which  he  replied, 

(If  any  challenge  is  made  it  must  be  now  and  to  one  member 
at  a  time.} 

The  Court  was  then  duly  sworn  by  the  Judge  Advocate,  and  the 
Judge  Advocate  was  duly  sworn  by  the  presiding  officer  of  the 
Court,  in  the  presence  of  the  accused. 

(It  is  at  this  stage  of  the  proceedings  that  the  accused  makes 
his  request  for  the  privilege  of  introducing  his  counsel, — and  will 
also,  if  he  desire  it,  state  his  reasons  for  postponement  of  the 
trial.  These  matters  being  settled,  the  Court  proceeds.] 

The  charges  were  read  aloud  by  the  Judge  Advocate. 

Judge  Advocate  (addressing  the  accused}  Captain  S.  M.  "  You 
have  heard  the  charge,  or  charges  preferred  against  you,  how  sav 
you — guilty,  or  not  guilty  ?" 

To  which  the  accused,  Captain  S.  M.,  pleaded  as  follows : — 

(The  Judge  Advocate  here  gives  notice,  that  should  there  be 
any  persons  present  in  court,  who  have  been  summoned  as  wit- 
nesses, they  must  retire  and  wait  until  called  for.) 

CAPTAIN  D.  N.,  2nd  Regiment  of  Infantry,  a  witness  on  the 
part  of  the  prosecution  was  duly  sworn. 

Question  by  Judge  Advocate. ? 

Answer.  

Question.  ? 

Answer. 

Cross-examined  by  the  accused. ? 

Answer.  — 

Question.  1 

By  the  Court.    Question. ? 


Answer.  - 
Question. 


Re-examined  by  the  Judge- Advocate. 

Question. 

Answer.  

Question.  

Answer. 


53 


418  APPENDIX. 

( The  examination  of  the  witness  being  completed,  his  testi- 
mony is  read  over  to  him,  and  corrected  if  necessary — when  the 
next  witness  is  called.  The  Judge  Advocate  having  presented 
all  the  evidence  for  the  prosecution,  states  such  fact,  and  an- 
nounces that  the  prosecution  is  closed — when  the  accused  enters 
upon  the  defence.} 

LIEUTENANT  A.  B.,  1st  Regiment  of  Artillery,  a  witness  for  the 
defence  was  duly  sworn. 

Question  by  the  accused. ? 

Answer.  — 

Question. ? 

Cross-examined.     Question  by  Judge  Advocate. ? 

Answer.  

Question. ? 

Answer. 

Question  by  the  Court. 1 

Answer. 

(The  evidence  on  both  sides  having  been  heard,  the  accused 
asks  for  time  to  prepare  his  final  defence.) 

The  Court  adjourned  to  meet  at  10  o'clock,  A.  M.,  on  the  —  inst. 

10  o'clock,  A.  M., 184 

The  Court  met  pursuant  to  adjournment. — Present. 
Col.  A.  B. 
Col.  N.  M. 
Major  W.  C. 
Major  T.  O. 
Captain  S.  B. 

Captain  S.  W.,  Judge  Advocate,  and 
Captain  S.  M.,  the  accused. 

The  proceedings  of  yesterday  were  read  over, — when  the  ac- 
cused, Captain  S.  M.,  presented  and  read  (or  which  was  read  by 
his  counsel)  the  written  defence  (A)  appended  to  these  proceedings. 

(Should  the  Judge  Advocate  intend  to  reply,  he  would  notify 
the  Court,  and  ask  for  the  requisite  time  for  preparation.) 

The  statements  of  the  parties  being  thus  in  possession  of  the 
Court,  the  Court  was  cleared  for  deliberation,  and  having  maturely 
considered  the  evidence  adduced,  find  the  accused,  Captain  S.  M., 
of  the  1st  Regiment  of  Infantry,  as  follows  : — 


APPENDIX.  419 

Of  the  first  specification  of  1st  charge,     .     .     .     Guilty  . 
Of  the  second  specification  of  1st  charge,    .     .     .  Not  Guilty. 
Of  the  third  specification  of  1st  charge,    .     .     .     Guilty. 
Of  the  FIRST  CHARGE,        Guilty. 

Of  the  first  specification,  2nd  charge,.  .  .  .  Not  Guilty. 
Of  the  second  specification,  2nd  charge,  .  .  .  Not  Guilty. 
Of  the  SECOND  CHARGE, Not  Guilty. 

And  the  Court  do  therefore  sentence  the  said  Captain  S.  M.,  of 

the  1st  Regiment  of  Infantry, to 

(Signed)  A.  B., 

Col.  1st  Regt.  Artillery,  and  President  of  the  Court-Martial. 
(Signed)  S.  W., 

Judge  Advocate. 

There  being  no  further  business  before  them, 
The  Court  adjourned  sine  die. 

(Signed)  A.  B., 

Col.  1st  Regt.  Artillery,  and  President  of  the  Court-MartiaL 
(Signed)  S.  W., 

Judge  Advocate. 


INDEX. 


A  Page. 

Absence,  without  leave,  may  be  found  on 

a  charge  of  desertion 185,  368 

Academy,  military 27 

cadets  of  subject  to  mil- 
itary law 27  I 

Accomplice,  admissible  witness 395 

having  the  promise  of  par- 
don to  testify 396 

testimony  of,  uncorrobora- 
ted, is  legal 396 

may  be  proceeded  against 

tor  other  offences 396 

Acquittal,  what  is  a  former 141 

form  of. 182 

motives  of  court  for. 182 

must  be  legal  to  bear  trial ....  208 
Adjournment,  president  of  court  martial 

adjourns  it  unless  objected 93 

from  day  to  day 94 

for  deliberation 193 

Admissions,  made  by  witness,  may  be 

used  against  him 384 

by  the  prisoner,  not  conclu- 
sive  385 

Amicus  curise,  (see  Counsel) 132 

Appeal,  either  party  may  appeal  264 

vexatious  and  groundless 265 

appellant  may  be  punished 265 

the  only  cases  in  which  allowed  267 
on  an  appeal  heard  as  a  new 

trial 268 

form  of  procedure  on 269 

parties  may  challenge 269 

the  appellant  cannot  be  sworn.  .269 

opinion  of  the  court  on 269 

Appointing  power  may  determine  the 

number  for  a  court 42 

Army,  is  a  constitutional  body 19 

followers  of  the 22,23,26 

Arraignment  of  prisoner 134 

Arrest,  manner  of  imposing 71 

cannot  persist    in    considering 

one's  self  in 77 

released  from  by  superior  author- 
ity   79 

breach  of. 80 


Page. 

Articles  of  war,  seventy-sixth  not  appli- 
cable to  non-military  persons 106 

what  persons  subject  to . .  21 
remarks  on  the  thirty- 
fifth  article 256,270 

B 

Bar  of  trial 138 

Black-book,  unbecoming  to  keep  a  .  .99,  100 
Breach  of  arrest 80 

C 
Cadets,  subject  to  rules  and  articles  of 

war 27 

brevetted  to  a  lieutenancy  con- 
sidered a  commissioned  officer  42 

Camp-followers 22 

necessity  of  subjecting 

to  military  regulations. .  26 
act  rather  in  a  civil  ca- 
pacity    26 

not  to  perform  military 

duty 27 

Cashiering 195 

Cat-o'-nine-tails 246 

Challenges,  to  supernumerary 89 

peremptory  not  allowed ....  1 14 
one  member  only  challeng- 
ed at  a  time 115 

the     member     challenged 

withdraws 115 

by  what  means  decided 116 

various  kinds  of. 117 

upon  the  ground  of  right 
to  the  forfeiture  caused  by 

conviction 117,  118 

frivolous  causes  not  to  be 

readily  admitted 118 

right  of  challenge  is  recip- 
rocal  ......118 

on  the  ground  of  prejudice 

or  malice 118 

on  the  ground  of  interest  in 
the  result,  or  injury  by 

the  prisoner 119 

having  been  a  member  of 
court  of  inquiry 119 


422 


INDEX. 


Challenges,  having  been  a  member  of 

another  court 121 

as  the  commanding  officer . .  122 
being  member  of  same  regi- 
ment or  company,  is  inad- 
missible  124 

to  member  after  being  sworn  124 
cause  of  challenge  known 
before  arraignment,  can- 
not be  afterward  allowed    125 

to  the  array 125 

proper  time  for  making  ....  125 
to  admit  every  challenge, 
when  the  public  interests 

will  allow 125 

principle  to  determine  the 

sufficiency  of 126 

not  allowed  as  a  matter  of 

course 126 

to  be  recorded 126 

good  ground  to  allow,  with- 
out proof. 127 

parties  on  an  appeal  may 

challenge 269 

Character,  general 344 

Charges,  copy  of,  laid  on  the  table  of  the 

court 110 

furnished  by  judge-advocate. . .  82 
read  before  the  arraignment,  for 

consideration Ill 

technical  nicety  not  required. . .  146 
where  discrepancies  exist  in 

copies  of. 82 

read  to  the  prisoner 82 

improper  to  be  kept  back 99 

founded  in  public  utility 100 

loose  and  indefinite  to  be  ob- 
jected to 101 

when  they  may  be  amended. .  .102 
no    additional  tried  after    ar- 
raignment   102 

to  be  read 114 

not  to  be  read  to  witnesses 154 

every  allegation  of  to  be  inves- 
tigated  172 

general  rule  for  written  char- 
ges  284,285 

technical  niceties  unnecessary. .  285 
definition  of  a  military  charge  286 

certainty  of  legal  terms  in 286 

the  matter  and  manner  of  a 

charge 287 

requirements  of  a  charge 287 

to  be  strict  and  positive 287 

certain  as  to  the  party  accused  287 

certain  as  to  time  and  place 288 

case  of  Captain  Eustace  Trenor  289 
the  precise  day  not  required  —  291 
rule  for  the  averment  of  place.  .291 
essential  requirement  of  a 

charge 291 

certainty  as  to  the  person 
against  whom  the  offence 
was  committed 292 


Charges,  certain  as  to  the  facts,  &c.,  &C.292 
written  instruments,  how  set 

out  in 293 

particular  words  set  forth 294 

no  part  of  in  figures 294 

words  used  with  an  inclusive 

or  exclusive  sense 294 

rule  for  the  construction  of  lan- 
guage in 294 

of  higher  criminality  of  certain 

acts 296 

offences  defined  by  statute 297 

words  of  the  statute  used 298 

not  necessary  to  cite  particular 

articles  of  war 298 

must  not  be  double 298 

ought  to  be  brief 299 

restriction  as  to  the  kind  of  of- 
fences  299 

when  they  may  be  altered  or 

amended 313,314 

alterations  in  charges  usually 

needed  in 314 

the  name  of  the  accused  must 

be  stated 366 

name  wrongly  spelled,  yet  idem 

sonans 366 

the  averment  of  time  in 366 

of  place 367,368 

under  the  eighty-third  article 

of  war 369 

Command,  lawful,  disobeying 165,  166 

Commutation  of  punishment 213,  216 

Competency  of  witnesses 387 

how  restored 392 

Complaints,  to  be  examined  into 254 

direct  applicatian  for  re- 
dress on 254 

laid  before  commander  of 

the  regiment 255 

the  medium  of  complaints 

is 255 

commander  of  troop  or 
company  only  subject  to 
complaint  under  the  thir- 
ty-fifth article  of  war 262 

who  only  may  make 267 

combination  of,  forbidden... 267 

mode  of  proceeding  on 268 

parties  not  sworn 268 

Compulsion,  or  necessity,  is  an  excuse. 

164,165 

by  menaces,  fear  of  death.  166 
Conduct,  unbecoming  an  officer  and  a 

gentleman 369-377 

court  may  find  a  minor  degree 

of  guilt 373 

Conduct  unbecoming  an  officer  and  a 
gentleman  must  involve  good  order 
and  discipline,  or  moral  turpitude  af- 
fecting the  credit  of  the  military  com- 
munity  377 

scandalous,  tending  to  the  de- 
struction of  good  morals  , . .  ,377 


INDEX. 


423 


Confession,  what  credit  to  be  given  to. . .  381 

to  be  received  with  caution, 

corpus  delecti  to  be  proved  382 

to  be  made  freely 382 

promises  or  threats  makes 

nugatory 382 

what  is  hope  of   favor  to 

induce 383 

when  made  by  promise,  &c., 
from  an  unauthorized 

person  is  admissible 383 

promise  must  have  reference 
to  some  temporal  advan- 
tage  383 

if  admissible  when  obtained 

by  artifice 384 

other  facts,  obtained  by 
means  of  confession,  may 

be  received 384 

only  evidence  against  the 

party  making  them 384 

of  a  servant /•.  385 

must  be  taken  together  385,  386 
Confinement,  not  to  exceed  eight  days 
without  trial,  or  until  a  court  can  be 

assembled 71 

is  counted  when  in  hospi- 
tal  249 

places  of  may  be  changed. .  249 

Confirmation  of  proceedings 203 

advantages  of 203 

requirements  of  law  re- 
specting ....  , 211 

how  stated 212 

distinctive  terms  in,  not 

necessary 212 

Conspiracy,  number  to  compose 348 

evidence  of 348 

act  of  one  considered  the 

act  of  all 349 

letters  and  writings  in 350 

must  be  connected  with  the 

objects  of  the 351 

the  acts  and  letters  of  one, 

evidence  against  others. . .  351 
acts  and  declarations  of  pris- 
oner admissible  for  him, 
connected  with  the  acts, 

&c.,  against  him 352 

Contempts  of  courts  punishable  without 

regard  to  rank 102 

such  as  are  committed  in  the 

face  of  the  court 103 

power  of  courts  martial  to 
proceed  against  offenders 

for 103,105 

case  of  Major  Browne,  Brit- 
ish army,  for 104 

persons  committing  may  be 

ejected  or  complained  of. . .  108 
the  law  courts  of  the  United 
States  should  be  authoriz- 
ed to  proceed  in  the  case  of 
to  military  courts 108 


Conviction,  what  is  a  former  conviction.. 141 
must  be  legal  to  bar  trial..  .208 
not  evidence  for  witness  in 

another  proceeding 394 

Corporal  punishment 196,  244,  246 

Counsel,  allowed  to  prisoner 132,  318 

place  of  and  duties — not  allow- 
ed to  address  the  court 132 

may  read  the  defence 133,  161 

prisoner  has  a  right  to  counsel 

before  any  court 134 

court  may  object  to  persons 

as 134 

soldiers  may  be  admitted  or  re- 
jected as 134 

not  admitted  at  the  instance  of 
persons  not  parties  before  the 

court 318 

disability  of  to  testify 400 

if  called  by  his  client,  jiot  pro- 
tected from  cross-examina- 
tion  402 

cannot  assume  that  a  witness 
has  made  a  statement  which 

he  has  not 409 

Court  of  chivalry,  institution  and  char- 
acter  10,  11 

Courts  martial,  how  authorized 4 

general,  regimental,  gar- 
rison   4,  37 

maximum  and  minimum 

to  compose 5 

by  whom  appointed ....  6,  48 
power  to  appoint  can- 
not be  delegated 6 

cases  in  whicn  the  gen- 
eral power  to  appoint 

is  excepted 4 

naval,  composition  of, 
and  appointing  au- 
thority    8 

respect  due  to  the  acts 

and  authority  of. 9 

jurisdiction  of 10,  50 

have  cognizance  of  mili- 
tary offences  under 

the  constitution 15 

propriety  of  different  ju- 
risdiction of 37 

when  to  be  composed 
entirely  of  militia  offi- 
cers    45 

president  of  not  to  be 

detailed  as  such 45 

proceedings  of  subject 

to  review 47 

jurisdiction  of  the  minor 

courts  martial  limited . .  48 
convenience  of  the  mi- 
nor courts 49 

general,  has  cognizance 
of  all  military  offen- 
ces   52' 

power  of  to  reduce  non- 


424 


INDEX. 


Courts  martial — continued. 

commissioned  officers 

to  the  ranks 5 

regimental  and  garrison, 
limitation  of  power  to 

punish 60,  105 

exclusive  jurisdiction  of 

general 62,  61 

general,  cases  proper  to 

be  tried  by 

general,  not  to  award 
greater  punishment  in 

certain  cases 

members  of  liable  to  civil 
action  for  illegal  pun- 
ishments   6! 

cannot  be  demanded ....  71 
no  control  of  the  prison- 
er except  in  court 81 

cannot  originate  evi- 
dence    85 

members  of,  how  de- 
tailed  87 

hours  for  the  proceed- 
ings of,  limited 8' 

continues  till  dissolved . .  8' 
after  arraignment  must 

proceed  to  judgment..  8"i 
may  adjourn  for  illness 

of  members 8T 

may  adjourn  from  day 
to  day  when  comple- 
ment is  not  present. . .  88 
cannot  change  the  place 

of  meeting 88 

supernumerary  mem- 
bers of,  detailed 

supernumeraries  sworn..  89 
challenge  to    supernu- 
merary member 

reduced  below  the  mini- 
mum, must  adjourn. . . 
new  members  cannot  be 

added 90 

to  be  re-organized  with 

new  members 91 

absent  member  cannot 

resume  his  place 92 

all  the  members  of  must 

be  present 92 

a  president  of  is  not  ap- 
pointed    93 

parties  before  may  claim 
the  benefit  of  its 

opinion 94 

deliberates  with  closed 

doors 94 

majority  of  votes  of  mem- 
bers   95 

where  there  is  equality 

of  votes  how  decided .  95 
cannot     be     interfered 
with  by  higher  milita- 
ry authority 95 


Courts  martial — continued. 

members  esponsible  for 

their  acts 95 

discretion  of,  respecting 
advice  of  judge  advo- 
cate   97 

may  adjourn  to  consider 

questions 9S 

to  judge  of  the  propriety 

of  the  charge 101 

may  punish  military  per- 
sons for  contempts  103, 105 
regimental,  cannot  pun- 
ish commissioned  of- 
ficers for  contempts, 

to  report  them 105 

may  forbid  publication 

of  proceedings 109 

assembling  and  places  of 
members,  parties,  &c., 

&c 109,110,  112 

place  or  room  for  assem- 
bling  112 

members  of  not  to  leave 

their  seats 110 

names  of  members  of 
registered  according 

to  seniority 110 

names  of  members  called  1 1 3 
not  exceedingly  rigid  in 

considering  challenges  115 
not  to  allow  abuse  of 

challenge 116 

deliberate  capacity  of 
previous  to  being 

sworn 116 

challenges  to  members 

of  previous  courts . .  120, 1 
necessary  to  state  in  the 
record  the   swearing 
of  the  court  and  the 

judge  advocate 128 

same  oath  taken  by  gen- 
eral, regimental,  and 

garrison  courts 129 

application  to  delay  the 
assemblingof  the  court 
to  delay  proceedings, 

&c 130,  132 

may  be  dissolved  for  ill- 

iiess  of  a  prisoner ....  131 
cannot  proceed  after  the 
time  limited  by  stat- 
ute  139,  140 

cannot  take  ex  qfficio 
notice  of  a  previous 

trial 14J 

cannot  proceed  while  a 
prosecution  is  pend- 
ing against  the  accus- 
ed before  a  civil  court 
for  the  same  offence  . .  143 
to  assume  that  manifest 
impediment  did  exist . .  143 


INDEX. 


425 


Courts  nufirtial — continued. 

bound  to  investigate  all 
matter  legally  present- 
ed  144 

procedure  of  when  plea 
in  bar  is  reasonable — 146 

when  variance  between 
copies  allow  time 147 

for  the  army,  witness  is 
sworn  by  the  judge 
advocate :  for  the  na- 
vy, by  the  president . .  149 

may  adjourn  to  the  room 
of  a  sick  witness ....  152 

decision  of 172 

calmness  of  delibera- 
tion of 173 

may  recall  witnesses ....  174 

discussion  by  members.  .174 

determine  questions  by 
majority  of  votes,  ex- 
cept in  particular 
cases 178 

two-thirds  of  required 
for  capital  punishment  178 

votes  of  or  opinions  not 
to  be  made  known — 
unanimity  not  declar- 
ed  179 

equality  of  votes  of  goes 
for  the  prisoner 180 

decision  of  to  be  clear 
and  specific 181 

may  state  motives  of  ac- 
quittal— remark  upon 
the  accuser 182,  183 

to  be  careful  how  they 
censure  witnesses 184 

duty  of  to  notice  all  mat- 
ters touching  the  re- 
spectability and  dis- 
cipline of  the  service . .  184 

may  find  a  less  degree 
of  guilt  than  that 
charged 184 

not  to  confound  evi- 
dence of  extenuation  185 

manner  of  voting 186 

vote  until  a  decision  is 
made 186 

majority  of  controls  the 
minority 187,  188 

have  a  twofold  capaci- 
ty as  judges  and  ju- 
rors   188 

whatever  is  done  must 
be  done  by  the  entire 
court 188 

every  member  of  must 
vote  a  punishment 

189,  190 

are  bound  to  affix  a 
punishment 192 

members  must  vote  up- 

54 


Courts  martial — continued. 

on  every  question 
presented  for  Decis- 
ion  192 

may  adjourn  to  consid- 
er a  finding,  &c 193 

to  deliberate  upon  the 
kind  and  quantum  of 

punishment 193 

cannot  sentence  to  two 
different  punish- 
ments, unless 194 

may  modify  or  change 
sentence  at  any  time 

of  the  session 201 

may  amend  defects  on 

revision,  excepting..  207 
proceedings  of  not  sub- 
ject to  review 226 

record  of,  deposited  in 

war  department 227 

regimental,  under  the 
thirty-fifth  article  of 
war,  its  character 

and  objects 257 

not  a  court  of  inquiry.  .258 
on  appeal,  to  act  with 
discretion    and  ten- 
derness  266 

procedure  of  when  to 
conform  to  the  rules 

in  civil  courts 322 

the  law  presumes  that 
the  judge  (members) 

knows  the  law 327 

anginal  proceedings  of  330 
disposition  of  the  record  330 
military  regulations  for 
,  procedure  —  plea  of 

guilty 386 

Crimea,  cognizable  by  general  courts 

martial 61,  62 

set  forth  in  simple  language ...  83 
cognizable  by  regimental  and 

garrison  courts  martial 62 

which  incapacitate  witnesses.. 391 
Custom  of  war ...  . .  20 


D 

D,  marking  with  the  letter  D 197 

Deaf  and  dumb  is  a  competent  witness . .  388 

Declarations,  dying 378 

of  a  servant  or  agent 385 

Defence  of  prisoner  commences 159 

who  read  by •  •  •  •  . . : 161 

what  may  be  a  defence 164 

Degradation  (see  Punishment) 249 

Deposition,  persons  not  in  the  line  or 

staff  may  make  in  certain  cases 153 

Desertion,  punishable  with  death 54 

marking  for  crime  of 197 

does  not  make  witness  incom- 
petent   393 


426 


INDEX 


Discharge,  with  ignominy 249 

Discretion,  officer  appointing  a  general 
court-martial,  can  determine  the  num- 
ber   42 

what  is  a  legal 43 

interpretation  of  the  discre- 
tion vested  by  the  article 

of  war 44 

no  discretion  in  commander 
of  the  regiment  to  with- 
hold a  court 264 

Dismission,  from  the  service 195 

power  of,  of  dismission  over 
the  officers  of  the  army 

and  navy 228 

Disobedience  of  orders,  when  justifiable, 

165,  166 

Drunkenness,  evils  of 169 

marking  for 197 

no  excuse  for  crime 168 

E 

England,  sovereign  of 1 

military  authority 

of  the 2 

Evidence 334 

court  cannot  originate 85 

given  in  the  narrative  form  or 

by  interrogation 151 

all  evidence  is  recorded  in  the 

words  given 151 

read  over  to  witness 158,  159 

no  obliteration  of;  on  record. . .  158 
received  after  the  conclusion 

of  the  case 159 

not  to  be  read  prior  to  a  cross- 
examination 159 

of  new  matter,  how  restricted, 

161,  162,  163,  315 
members  to  satisfy  themselves 
of  the  extent  and  accuracy 

of 173 

discussion  of,  recommended  174-177 
of  character  after  the  finding, 

not  received 188 

additional,  on  review  of  pro- 
ceedings, not  admissible 204 

irrelevant,  does  not  invalidate 

proceedings 205 

difference  of  extent  in  civil  and 

military  trials 334 

leading  principles  of 334 

founded  in  experience 334 

of  the  several  heads  of 335 

definition  of. 336 

parol  and  written 336 

of  what  it  consists 336 

general  rule 337 

direct  or  positive  evidence 337 

presumptive  evidence 338 

is  an  inductive  science 338 

basis  of  presumptions 338 

necessity  of  understanding  cir- 
cumstantial evidence 340 


Evidence  to  be  confined  to  the  points  in 

issue 341 

of  other  facts  than  those  charg- 
.  ed,  sometimes  necessary  . . .  .342 

of  desertion  involves  intention..  343 

not  allowable  to  show  a  gene- 
ral disposition  to  commit  a 
particular  offence 343 

of  contemporaneous  conduct, 
limited 344 

of  general  character 344, 345 

of  particular  characteristics ....  346 

of  honesty,  courage,  &c 346 

inquiry  to  be  as  to  general 
character 346 

evidence  of  character  to  be  con-% 
sidered  by  the  court !  34^f 

when  the  bad  character  of  pris- 
oner may  be  shown 348 

no  evidence  to  contradict  the 
record 348 

evidence  of  conspiracy — num- 
ber to  form  a  conspiracy ....  348 

act  of  one  considered  the  act  of 
all 349 

letters  and  writings  in  conspi- 
racy  350 

time  and  place  of  finding  letters 
and  writings 350 

of  acts  and  declarations  of  pris- 
oner....  ......352 

every  question  of  a  military 
man  is  admissible  when,  &c.  353 

opinions  not  asked  when  the 
court  can  judge  for  them- 
selves   354 

affirmative  of  the  issue  to  be 
provedj 354 

of  proving  a  negative 354 

where  to  refer  for  exceptions . .  354 

the  one  who  makes  the  charge 
must  prove  it ;  . . . .  355 

when  the  defendant  must 
prove  the  affirmative 356 

the  best  evidence  to  be  produ- 
ced, t 356 

accumulation  of  unnecessary. . .  357 

evidence  of  the  complainant. .  .357 

sufficient  only  is  required 358 

of  primary  and  secondary  evi- 
dence  358 

notice  to  produce  documents. . .  358 

not  necessary  to  be  in  writing, 
may  be  served  upon  prisoner 
or  counsel 359 

diligence  to  be  used  in  looking 
for  supposed  lost  papers 359 

when  a  document  is  presumed 
to  be  lost 359 

of  persons  acting  in  the  charac- 
ter set  forth 360 

proof  of  hand-writing 360 

opportunities  of  witnesses  who 
prove  hand-writing 361 


INDEX. 


427 


Evidence — continued. 

not  essential  that  the  witness 
should  have  seen  the  party 

write 362 

a  document  not  proved  by  com- 
parison with  other  writing. . .  362 
the  court  may  compare  docu- 
ments already  in  evidence. .  .363 

case  of  ancient  documents 363 

of  persons  skilled  in  detecting 

forgeries,  rule  not  settled 363 

the  substance  of  the  issue  only 

to  be  proved 364 

it  is  enough  to  prove  a  sub- 
stantive crime 364 

0,   .     where  alleged,  did,  and  caused 

to  be  done,  either  is  sufficient  364 
sufficient  to  prove  one  intent. . .  365 
of  the  description  of  person  or 
thing,  circumstances  to  be 

proved 365 

a   whole    averment    may    be 

struck  out 366 

the  name  of  the  accused  party 

must  be  stated 366 

if  the  name  is  wrongly  spelled, 

but  if  idem  sonans 366 

the  averment  of  time 366 

of  place 367,368 

notice  of  the  eighty-third  arti- 
cle of  war 369 

hearsay  is  not  evidence 377 

exceptions  in  case  of  dying  de- 
clarations   378 

when  dying  declarations  are 

admitted 378 

character  of  party  making  dy- 
ing declarations  may  be  ex- 
amined   378 

dying  declaration  of  an  accom- 
plice is  admissible,  but  a  con- 
vict's is  not 379 

precise  words  must  be  repeated  379 
testimony  of  a  witness,  since 
dead,  bow  received  in  a  sec- 
ond action 379 

of  hearsay  in  illustration 379 

of  notoriety 380 

sayings  and  acts  of  third  per- 
sons   380 

declarations  of  the  parties 380 

of  confessions 381 

rules  of  ascertained  by  refer- 
ence to 387 

of  accomplice  admissible 395 

of  a  socius  requires  confirmation  396 
no  other  relation  but  that  of 
husband  and  wife  excludes 
from  giving  evidence 400 


Favor,  wh  it  ia  hope  of. 383 

Finding 172 


Finding  of  the  court  may  be  special 180 

of  majority  controls  the  court. . .  187 

Fine  and  imprisonment 58 

excessive  fines  forbidden 68 

Followers  of  the  army 22 

privileges  of. . .  .22,  26 
subject  to  orders . .  24 
not    to     perform 
military  duties 
as  combatants . .  26 
important    to,  to 
make  themselves 
acquainted  with 
the  orders,  &c . . .  27 

G 

Garrison  courts  martial 4,  48,  49 

Guard,  to  attend  a  court  martial 112 

officer  of  to  receive  prisoners ..  72,  74 

H 

Habeas  corpus,  writ  of. 18 

Hand- writing,  proof  of. 360 

Hanging  (see  Punishment) 248 

Hearsay  is  not  evidence 377,  381 

Husband  and  wife  mutually  incompe- 
tent as  witnesses 397 

the  marriage  must 

be  lawful 397 

cases  where  they 
are  not  preclu- 
ded to  testify 398 

exception  to  gene- 
ral rule,  where 
one  may  testify 
against  the  other  399 
erroneous  practice 
in  case  of  Lieut. 
T— 399 


Idiots 389 

Ignominious  punishment 249 

Ignorance,  when  an  excuse 164 

Inability  of  witnesses 388 

Incompetent  person  cannot  have  his  af- 
fidavit reaa,  unless 392 

from  interest 393 

from  infamy 391 

bail  is  incompetent — may 

be  released 397 

[nfamy,  mcompetency  from 391 

[nfant,  testimony  of  an 388 

no  time  fixed  when  excluded . .  .388 

Informers  are  competent 395 

Imprisonment,  term  of  how  estimated. . .  198 

Enquiry,  courts  of — origin 272 

authorized   by  law,   who 

may  order 272,  273 

examine  witnesses  on  oath  273 
member  of,  a  good  chal- 
lenge on  the  trial. . .  119, 120 
opinion  of  court  of,  case 
of  private  Delop 259 


428 


INDEX. 


Inquiry,  courts  of,  parties  to  under  thirty- 
fifth  article  of  war 263 

preliminary  to  trial 273 

opinion  of  court  of  confin- 
ed to  particular  points  .  .274 

court  of  not  to  pronounce 
an  opinion  of  guilt  of 
the  accused 274 

appointment  of  courts  of 

restricted 275 

powers  of  court  to  sum- 
mon witnesses 275 

accused  not  obliged  to  take 
part  in  the  inquiry 275 

right  of  accused  to  be  pre- 
sent   275 

counsel  allowed  before 
courts  of. 276 

court  of,  may  be  open  or 
closed 276 

duties  and  powers  of 
courts  of. 277 

courts  of  confined  to  cer- 
tain matters  of  inquiry. .  277 

courts  of  not  to  depart  from 
the  subject  submitted. .  .277 

court  of  inquiry  cannot 
proceed  if  the  number 
falls  below  that  appoint- 
ed in  the  order  of  pre- 
cept   277 

what  are  tne  facts  to  be 
reported 277 

members  of  courts  of  may 
be  challenged 278 

hours  of  sitting  of  courts 
of  not  limited 278 

accused  cannot  demand 
copies  of  documents  nor 
of  proceedings 279 

courts  of  can  punish  for 
contempts  — ' 279 

proceedings  of,  how  au- 
thenticated  279 

proceedings  may  be  re- 
vised  279 

charges  for  submitted  in 
writing 280 

interpreter  allowed 280 

courts  of  not  sworn  to  se- 
crecy   280 

time  for  inquiry  limited..  .281 

objects  of  statutes  of  lim- 
itation  282 

judge  advocate  of 331 

first  meeting  of  courts  of. .  332 

special  instructions 332 

decide  mode  of  procedure .  .332 

fair  copy  of 332 

record  authenticated 338 

naval  courts  of 333 

Insanity .• 168 

Intention  at  the  time  of  offending 295 

certain  terms  to  express 296 


Interpreter  allowed  before  courts  of  in- 
quiry   280 

disability  of  to  testify 401 

Intoxication  no  excuse  for  crime 168 

sometimes  considered  by 
military  courts  in  exten- 
uation   169,389 


Judge  advocate  to  furnish  prisoner  with 

copy  of  the  charges 82,  311 

discretion  of  in  summon- 
ing witnesses 84 

not  responsible  for  hie 

opinions 9fc 

subject  to  military  law, 

98,315 

improper  selection  of  per- 
sons, as 97 

to  be  a  military  person. . .  316 
appointment  of  from  civil 

life  objectionable 99 

may  remonstrate  against 

charges 101 

when  he  may  amend  the 

charge 1 02 

provides  a  place  for  meet- 
ing  112 

reads  the  charges 114 

asks  the  prisoners  for  ob- 
jections to  members. .  .114 

cannot  be  challenged 116 

ought    to    exercise  the 

right  of  challenge! 118 

sworn 128 

may  open  with  a  state- 
ment, in  becoming  lan- 
guage, though  not 

usual 149 

swears  the  witnesses  in 

army  courts 149 

right  to  reply  of 162 

reads  over  proceedings . .  173 

takes  the  notes 177 

makes  and  keeps  a  min- 
ute of  the  notes 178 

receives  the  opinions  of 

members 186 

remarks  upon  the  office  300 

to  be  a  Jit  person 301 

should  be  a  soldier  as  well 

as  a  lawyer 304 

office  of  judge-advocate 

general 305 

selection  of  proper  per- 
sons for 306 

power  to  appoint ,  307 

duty  of 308 

assistance  to  prisoner 309 

speaks  with  prisoner  be- 
fore trial 310 

summons  witnesses 310 

prepares  a  plan 311 

list  of  witnesses  furnished  3 1 1 


INDEX. 


429 


Judge  advocate,  capacity  of 312 

how  far  subject  to  the 

court 312 

cannot  be  challenged. .  .312 
may  be  absent  and  re- 
sume his  seat 312 

right  of  parties  to  his 

opinion 312 

to  see  that  the  court 
is  properly  constitu- 
ted   313 

record  question  to  pris- 
oner, and  the  right  of 

challenge 313 

makes  out  fair  copy 313 

to  see  that  the  charges 

are  in  legal  form 313 

when  the  charges  may 
be  altered  and  amend- 
ed  314 

has  the  right  to  reply . .  .314 
is  always  the  prosecu- 
tor, exception  in  the 

navy 317 

entitled  to  counsel 318 

to  be  impartial 323 

duties  in  closed  court . . .  323 
cannot  make  a  protest. .  .324 
gives  counsel  and  advice  325 
to  give  his  opinion  and 

record  it 325 

to  use  respectful  lan- 
guage, &c 326 

not  to  weigh  evidence  . .  326 
value  of  the  opinions  of  326 

registrar  of  the  court 327 

gives  no  opinion  as  to 
the  sentence,  and  not 

answerable  for  it 327 

to  be  cautious  not  to  ir- 
ritate   the    court  by 
pertinacious  opinions  328 
should  not  make  points, 

&c.,  trifles,  &c 329 

confidence  between  the 

court  and 329 

for  courts  of  inquiry, 

duties,  &c 331 

Jurisdiction  of  military  courts 10 

necessity  of  understanding 

the  limits  of  military 14 

of  courts  martial,  is  special 

and  limited 19 

of  courts  martial  of  crimes 
committed  before,  to  be 
tried  after  expiration  of 

the  term  of  service 28 

particular  jurisdiction  of  the 
several  courts  martial  de- 
termined by 50 

exclusive  of  general  courts 

martial 62,63 

Jurisprudence,  military,  American,  ori- 
gin of 3 


Laws,  military,  of  the  United  States ....     1 

referred  to  what  period 1 

martial — character  of,  and  chan- 
ges in 12 

military  make  part  of  the  laws  of 

the  country 14 

mistake  in  law  is  no  defence 164 

defect  of,  does  not  cure  itself 223 

Limitation  of  time  by  statute 139 

it  cannot  be  waived  by  the 

accused 139 

the  policy  of  the  law 139 

court  cannot  proceed  at  the 

time  limited 140 

Lunatics,  not  criminally  chargeable  for 
their  acts 164,  389 

M 

Madmen 389 

Marine  corps,  destined  organization  of. . .     8 

how  governed 8 

officers  of,  to  be  associa- 
ted with  officers  of  the 

land  forces 44 

Martial  law,  character  of,  and  changes 

in ,..,. 12 

definition  of 16 

proclamation  of,  not  lawful 

within  the  U.  S 17 

Military  laws  of  the  United  States 1 

military  law  department  re- 
quired   305 

establishment 1 

jurisprudence,  system  of,  com- 
mencing   , 3 

jurisprudence  a  part  of  the  laws 

of  the  country 14 

law,  definition  of 16 

character,  persons  impressed 
with,  not  amenable  to  rules 
and  articles  of  war,  without 
a  positive  provision  to  that 

effect 36 

academy,  advantages  of 170 

opposition  to  mi.  itary  academy  170 
benefits  to  be  derived  from  a 

precise  system  of 251 

defect  in  the  laws  for  the  ad- 
ministration of  military  jus- 
tice  303 

inequality  of  the  laws 304 

•regulations  for  courts 386 

Militia,  in  the  service  of  the  U.  S.  to  be 
tried  by  courts  martial  composed  of 

militia  officers 45 

Mitigation  of  sentence,  provocation  con- 
sidered,   213 

what  is  a 213,215 

remarks  upon 222 

Mute,  standing 136 

Mutiny  act  of  Great  Britain . .     9 

evidence  to  prove 348 

mutiny  may  begin  with  one. . . . 348 


430 


INDEX. 


N 
Navy,  rules  and  regulations  for,  first 

adopted 8 

Negroes,  competency  of  to  testify 402 

case  of  Dr.  Fellowes 402 

case  of  Lieut.  Hooe,  U.  S.  N...403 
opinion  of  attorney  general ....  403 

opinion  of  F.  S.  Key,  Esq 404 

left  for  the  discretion  of  court 

martial  to  determine 405 

Nin-commissioned   officers,  not  to  be 
confined  in  guard-house 76 

O 

Oath,  prescribed  by  the  sixty-ninth  arti- 
cle of  war  administered 127 

mode  of  administering 128 

administered  to  judge  advocate 128 

the  same  taken  by  every  court 

martial 129 

corporal  part  of,  or  form  of  admin- 
istering   150,  390 

proper  time  for  asking  witness  as 

to  the  form 390 

Officer,  definition  of  legally, 21 

non-commissioned, 22 

commissioned,  can  be  tried  by 

general  courts  martial  only. . .  37 
of  the  guard  to  receive  prison- 
ers....  ......72,74 

commanding  officer,  discretion 

to  release  prisoners 72 

cannot  demand  a  court  on  him- 
self or  others 76 

of  the  arrest  of 75 

limits  to  arrested  officers 75 

example  given  by 169 

Opinions  of  Mr.  Justice  Wilde  in  the 

case  of  a  seaman 31 

attorney  general  as  to  right  of 
surgeons  to  sit  as  members 

of  courts  martial 41 

of  Mr.  Justice  Story  as  to  dis- 
cretion of  the  appointing 
power  vested  by  sixty-fourth 

article  of  war 44 

good  cause  of  challenge 123 

as  to  acquitting  members  vo- 
ting a  punishment 192,  193 

false,  on  punishments 250 

how  expressed,  and  obedience 

thereto  enforced 265 

on  questions  of  science,   art. 

&c 352 

how  questions  relative  to  opin- 
ions on  matters  of  art,  sci- 
ence, &c.,  are  framed 353 

not  asked  whenever  the  court 
can  form  a  judgment  them- 
selves   354 

professional  men  to  state  opin- 
ions within  the  scope  of 

their  professions 413 

Orderlies  detailed  for  courts  martial ....  1 12 


Pardon,  who  may  pardc  n 213 

what  is  a 2)3 

power  to  pardon 47 

power  to,  does  not  include  that 

of  mitigation 225 

does  not  always  restore  compe- 
tency   392 

when  conditional 392 

when   pardoned  by  a  foreign 

authority 393 

Paymasters  not  eligible  as  members  of 

courts  martial 38 

Peine  forte  et  dure,  punishment  of  for- 
merly  137 

Persons  serving  with  the  armies  in  the 

field,  who  are 26 

Pleas .  134,  135 

of  guilty,  evidence  to  be  received . .  135 

regulations  for  plea  of  guilty 135 

standing  mute 136-138 

refusing  to  answer  considered  as 

standing  mute 137 

to  the  jurisdiction 138 

in  bar  of  trial 138 

special  pleas  in  bar 138,  139 

limitation  by  statute 139,  142,  143 

of  former  acquittal  or  conviction. . .  140 

case  of  Captain  Howe 140,  142 

of  a  previous  trial,  the  privilege  of 

the  prisoner  only 141 

former  arrest  not  good j42,  143 

case  of  Lieut.  Gassoway 141 

of  pardon 144 

having  been  punished  for  the  of- 
fence   144,  145 

of  want  of  definite  statement  in  the 

charge    145 

when  reasonable,  the  court  hear 

evidence 146 

in  abatement 147 

demurrer  not  allowed 147 

that  the  prisoner  has  not  a  copy 
of  the  charge,  or  variance  be- 
tween   147 

of  not  guilty,  the  ordinary  one ....  148 

always  recorded 148 

in  bar  of  judgment,  seldom  made. .  163 
President  of  court  martial,  votes  like 

other  members 93 

directs  it  to  be  cleared. . .  94 

responsibility  of. 94 

will  enforce  order  and 
report      unbecoming 
conduct  in  members. .  .94 
President  of  the  United  States,  limita- 
tion of  military  powers 1 

power  to  appoint  courts    5 
commander-in-chief   of 

ihe  army  and  navy..     5 
right  to  mitigate    sen- 
tence.....  218,222 

power  to  punish 216 

powers  of,  derived  from 


INDEX. 


431 


President  of  the  U.  S. — continued. 

the  constitution  and 

laws 224 

right  of  to  dismiss  with- 
out trial 228-243 

Prisoner  to  be  addressed,  when  a  com- 
missioned officer,  by  his  name  and  title  1 14 
when  several  are  to  be  tried, 
the  record  must  be  separate 

for  each  case 129 

arraignment  and  plea  of. 134 

to  be  warned  of  the  danger  of 

pleading  guilty 136 

address  of 160, 161 

cross-examination  of  witnesses 

by  prisoner  allowed 1 63 

acquitted  by  equality  of  votes . .  180 
may  be  found  guilty  of  a  part, 
and  acquitted  of  a  part  of 

the  charge 181 

cannot  be  found  guilty  of  a 
higher  crime  than  that  char- 
ged  185 

recommendation  in  favor  of. .  .198 
not  to  be  released  for  duty  and 

afterward  punished 249 

to  appear  without  bonds 1 J3 

court  no  control  over  except  in 

court.  113 

allowed  a  chair 113 

defence  of 159 

prosecution  of  to  be  commenced 
before  discharge  is  given ....  35 

provost-marshal  to  receive 72 

may  be  released 72 

confinement  without  charges  . .  74 

to  be  treated  with  respect 94 

may  object  to  loose  or  indefi- 
nite charges 101 

attended  by  a  commissioned 

officer  or  guard 113 

may  prove  character 344 

declaration  of  on  former  occa- 
sions  349 

may  be  found  guilty  of  a  mi- 
nor offence  than  the  one 

charged 369 

where  several  are  joined  in  the 

same  charge 395 

*o  apply  for  separate  trial  to 

obtain  testimony 396 

Prosecutor,  illness  of 131 

place  of  in  court 109 

not  recognized  before  court 

martial..T 109 

the  first  witness  examined  . .  148 
must  adduce  all  his  proof 

before  the  defence 160 

court  may  remark  upon  the 

conduct  and  motives  of  182, 183 
judge  advocate  is  always  317,320 
accuser  may  remain  in  court 

to  give  information 320 

if  a  non-military  person,  the 


Prosecutor — continued. 

accuser  can  only  appear  a* 
a  witness  or  an  informer.  .320 

is  a  competent  witness 394 

Provost-marshal  to  receive  prisoners  and 

not  release  without  authority 72,  74 

Punishment,  when  specific,  court  must 

adopt  it ">  4 

of  death  for  desertion 54 

by  stripes 55 

suspension  from  rank,  pay 

and  command 55-57 

of  fine  and  imprisonment..  58 
equality  of  recommended . .  66 
species  of  determined ....  66 
regulated  by  the  constitu- 
tion   68 

cruel  and  unusual  punish- 
ment forbidden 68 

the  kind  and  quantum  of. .  69 

of  peine  forte  et  dure 137 

every  member  must  vote 

for  a 189 

when  not  discretionary.  ..189 
of  death,  when  not  carried 

to  vote  another 191 

of  death    only  in    cases 

mentioned  by  the  law  . .  194 
of  cashiering  and  dismis- 
sion   1 94 

different  kinds  of 194 

inflicted    on  private  sol- 
diers   195 

of  corporal  punishment . . .  196 
pardon  of,  to  whom  com- 
mitted  213 

./    .  change  of  is  illegal 213 

specific,  cannot  be  changed  216 
arbitrary,  cannot  be  in- 
flicted   218 

to  be  authorized  by  the 

judgment  of  the  court  .  .225 
to  be  strictly  executed . . .  .250 
corporal,  how  inflicted . . .  .244 
to  be  no  more  than  pris- 
oner can  bear 246 

instrument  of. 246 

modification  of  in  British 

army 247 

of  capital,  by  shooting 247 

by  hanging 248 

by  drumming  out 249 

evils  of  false  opinions  on.  .350 
what  kinds  of  admitting 
of  no  degrees. 214 


Quarrels,  power  given  to  inferiors  to 

suppress 76 

Questions  to  be  reduced  to  writing 155 

rejected    questions    not    ex- 
punged  156 

judge  advocate  to  object  to 
certain  questions 156 


482 


INDEX. 


Questions  by  the  court,  cannot  be  ob- 
jected to 156 

how  recorded 156 

leading  not  allowed 407 

when  leading  questions  may 

be  allowed 407 

whether     questions     which 

criminate  can  be  put 410 

those  which  tend  to  degrade 
may  be  put — not  bound  to 
answer 411 

R 

Rank, — without  military  rank,  with  the 
right  of  command,  officers  are  not  eli- 
gible as  members  of  a  court  martial ....  38 
no  limitation  of  as  to  members  of 

courts  martial 46 

Recommendation  by  members,  method 

of 198 

written     below    the 

sentence 199 

not  an  act  of  the 
court,  but  of  indi- 
vidual members. . . .  199 
majority  of  court  only 
ought  to  recom- 
mend to  mercy 200 

Reconsideration  of  proceedings 203 

Recruits,  charges  read  to,  and  consulted 

with  by  judge  advocate 82 

Redress,  mode  of  obtaining 77 

for  an  inferior  officer  or  sol- 
dier  79,252 

preference  to  inferior    officers 

and  soldiers 252 

Regulations  for  the  army 19 

Rejoinder,  not  a  matter  of  right 315 

Reply,  judge  advocate  has  the  right  to.  .314 

Retainer  to  the  camp,  description  of. .  25 

Review,  proceedings  cannot  be  review- 
ed by  another  court •. 226 

successor  in  command  to  re- 
view   227 

Revision  of  proceedings 203 

no  additional  evidence  re- 
ceived   204 

when  proper 205 

no  erasure  of  the  record ....  205 
Rules  and  articles  of  war  first  ordained  .     3 
additional,  adopted  un- 
der the  constitution . .     4 
what  persons  subject  to  21 
cadets  of  the  military 
academy  subject  to 

the 27 

how  declared 3 

S 
Seamen,  amenable  to  trial  after  term  of 

service  in  certain  cases 28 

Sentence  of  capital  punishment,  two 

thirds  of  members  necessary 178 

when  pronounced 187  i 


Sentence  to  be  clearly  expressed 1M 

mode  of  execution  of  stated..  196 
to  use  the  words  of  the  stat- 
ute   197 

may  be  partially  remitted 213 

cannot  be  altered  or  commu- 
ted  213 

objections  to  change  of 217     . 

objections  to  commutation  of  223 
maxim  that  sentence  cannot 

be  commuted 225 

execution  of 244 

Servant  is  competent  to  testify  for  or 

against  his  master 400 

Shooting  (see  Punishment) 247 

Soldier,  the  word,   synonymous    with 

non-commissioned  officer 21 

liable  to  be  tried  after  time  of 

expiration  of  service 28 

privates,  where  confined 76 

may  be  admitted  or  rejected  as 

counsel  for  comrades 134 

improvement  in  the  habits  of . .  169 
Supernumeraries,  members    of   courts 
martial,  how  detailed,  their    duties, 

&c 88,89 

Surgeons  not  eligible  as  members  of 

courts  martial 38 

Sutlers  subject  to  orders 25 

who  are,   and  how  appointed, 
character  of 24,  25 


Technical  terms,  utility  of. 295 

Trial,  preliminaries  to 71 

uniformity  of  procedure  in  the.. . .  71 

application  for  postponing 129 

acquittal  or  conviction  must  be  le- 
gal to  bar  208 

new  trial,  as  an  act  of  mercy 210 

letter  on  the  subject  of  dismiss- 
ing without 235 


Vair  dire,  examination  of  witnesses  on 
the 407 

W 

Wager  by  witness 394 

Witnesses,  list  of  appended  to  charges ...  83 

summoning,  discretion  to  be 
observed 84 

not  precluded  because  not 
named  in  the  list 85 

examined  in  presence  of  all 
the  court 93 

to  be  treated  with  respect ....  94 

not  necessary  to  be  called 
into  court  before  arraign- 
ment   113 

being  a  material  witness  is 
ground  of  challenge 123 

illness  of 131 


INDEX. 


433 


Witnesses,  hearing  another  witness  does 

not  make  him  incompetent  148 
prosecutor  is  the  first  wit- 
ness examined 148 

before  army  courts,  are  sworn 
by  the  judge  advocate;  be- 
fore naval  courts,  by  the 

ft  president 149 

examination  of  in  presence 

of  all  the  court 150 

manner  of,  to  be  regarded . . .  151 

sometimes  confronted 152 

sick  witness 152 

in  civil  life,  not  compellable 

to  attend 153 

rule  for  the  examination  of . .  155 

examination  in  chief  of 157 

cross-examination  of 157 

re-examination  of. 157 

the  parties  finish  their  exam- 
ination before  the  court  in- 
terrogates  157 

evidence  read  over  to 158 

the  opposite  party  cross-ex- 
amines  159 

for  defence 160 

new,  cross-examined 163 

may  be  recalled 174 

conduct  of  remarked  upon. .  .183 
incompetent,  do  not  vitiate 

proceedings 205 

on  an  appeal,  are  sworn 269 

on  courts  of  inquiry 273 

must  speak  to  facts 352 

opportunities  of  who  prove 

hand-writing . '. 361 

an  accomplice's  dying  decla- 
ration, but  not  a  convict's, 

is  admissible 379 

testimony  of,  since  dead 379 

competency  of 387 

what  persons  inadmissible . . .  387 
want  of  religious  principle. .  .390 
cannot  be  asked  as  to  his  be- 
lief in  the  Christian  faith . .  391 
incompetent,    cannot    have 

his  affidavit  read 392 

how  restored  to  competency . .  392 

incompetent  from  interest 393 

expectation  of  reward 394 

whose    signature   has  been 

forged 394 

conviction  not  evidence  for .  .394 
informers  are  competent  . . .  .395 

of  negroes  as 402 

credibility  of 405 

55 


Witnesses,  impeachment  of  credit  of 405 

impeachment  by  evidence  of 
general  character 406 

opposite  party  may  cross-ex- 
amine   40f» 

examination  of 40t> 

on  the  vair  dire 407 

examination  in  chief 407 

adverse  to  party  calling,  how 
examined 407 

form  of  cross-examination 
depends  on  disposition  and 
bias  of 408 

not  bound  to  answer  irrele- 
vant questions 408 

re-examination  of.  for  what 
purpose 409 

not  compellable  to  answer 
questions  which  expose 
nim  to  a  penalty 409 

court  to  instruct 410 

witness  to  judge  for  himself.  .410 

not  bound  to  answer  ques- 
tions which  tend  to  de- 
grade  411 

must  state  how  he  knows  a 
fact 411 

privilege  of  objecting  to  ques- 
tions tending  to  subject 
him  to  penalties  belongs 
to  witness 411 

if  bound  to  answer  ques- 
tions which  tend  to  de- 
grade  411 

when  a  witness  declines  an- 
swering a  question,  to  have 
no  effect  on  the  court 411 

when  he  makes  statements 
unexpected  to  the  party 
calling  him,  the  facts  may 
be  proved  by  others 412 

a  party  cannot  discredit  his 
own 412 

examination  of  on  matters  of 
opinion 412 

professional  men  are  to  state 
facts  and  opinions  within 
the  scope  of  their  professions  413 

Writ  of  habeas  corpus 18 

^  case  of  William  Walker, 

seaman 30 

Wrongs,  how  to  proceed  to  find  a  remedy  77 
description  of  under  thirty-fifth 

article  of  war 258 

application    for    redress    first 

made  to  the  captain 264 


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its  topics  alphabetically  arranged,  not  a  moment  is  lost.  The  matter  in 
question  is  found  at  once,  digested,  condensed,  stripped  of  all  that  is  irrele- 
yant  and  unnecessary,  and  verified  by  a  comparison  of  the  best  authorities. 
Moreover,  while  only  men  of  fortune  can  collect  a  library  complete  in  all  the 
departments  of  knowledge,  a  Cyclopedia,  worth  in  itself  for  purposes  of  ref- 
erence at  least  a  thousand  volumes,  is  within  the  reach  of  all, — the  clerk,  the 
merchant,  the  professional  man,  the  farmer,  the  mechanic.  In  a  country  like 
ours,  where  the  humblest  may  be  called  to  responsible  positions  requiring 
intelligence  and  general  information,  the  value  of  «uch  a  work  cannot  be 
overestimated. 


D.    APPLETON    &  CO.'S   PUBLICATIONS. 


PLAN  OF   THE   CYCLOPAEDIA. 

The  New  American  Cyclopaadia  presents  a  panoramic  view  of  all  human 
knowledge,  as  it  exists  at  the  present  moment.  It  embraces  and  popularizes 
every  subject  that  can  be  thought  of.  In  its  successive  volumes  is  contained 
an  inexhaustible  fund  of  accurate  and  practical  information  on  Art  and 
Science  in  all  their  branches,  including  Mechanics,  Mathematics,  Astronomy, 
Philosophy,  Chemistry,  and  Physiology;  on  Agriculture,  Commerce,  and 
Manufactures ;  on  Law,  Medicine,  and  Theology ;  on  Biography  and  History, 
Geography  and  Ethnology ;  on  Political  Economy,  the  Trades,  Inventions, 
Politics,  the  Things  of  Common  Life,  and  General  Literature. 

The  Industrial  Arts  and  those  branches  of  Practical  Science  which  have 
a  direct  bearing  on  our  every- day  life,  such  as  Domestic  Economy,  Ventila- 
tion, the  Heating  of  Houses,  Diet,  &c.,  are  treated  with  the  thoroughness 
which  their  great  importance  demands.  Technical  terms  are  here  as  far  as 
possible  avoided,  that  all  the  information  given  may  be  practically  understood 
and  applied. 

The  department  of  Biography  is  full  and  complete,  embracing  the  lives  of 
all  eminent  persons,  ancient  and  modern.  In  American  biography,  particu- 
larly, great  pains  have  been  taken  to  present  the  most  comprehensive  and  ac- 
curate record  that  has  yet  been  attempted. 

In  History,  the  New  American  Cyclopaedia  gives  no  mere  catalogue  of 
barren  dates,  but  a  copious  and  spirited  narrative,  under  their  appropriate 
heads,  of  the  principal  events  in  the  annals  of  the  world.  So  in  Geography, 
it  not  only  serves  as  a  general  Gazetteer,  but  it  gives  interesting  descriptions 
of  the  principal  localities  mentioned,  derived  from  books  of  travel  and  other 
fresh  and  authentic  sources. 

As  far  as  is  consistent  with  thoroughness  of  research  and  exactness  of 
statement,  the  popular  method  has  been  pursued.  The  wants  of  the  people 
in  a  work  of  this  kind  have  been  carefully  kept  in  view  throughout.  By  con- 
densation and  brevity,  the  editors  have  been  enabled  to  introduce  a  much 
greater  variety  of  subjects  than  is  usually  found  in  similar  works,  and  thus 
to  enhance  the  value  of  the  New  American  Cyclopaedia  as  a  manual  of  uni- 
versal reference. 

It  is  hardly  necessary  to  add  that  throughout  the  whole,  perfect  fairness 
to  all  sections  of  country,  local  institutions,  public  men,  political  creeds,  and 
religious  denominations,  has  been  a  sacred  principle  and  leading  aim.  Nothing 
that  can  be  construed  into  an  invidious  or  offensive  allusion  has  been  admitted. 
The  truth  without  note  or  comment  has  been  our  motto. 


I 
THE   NEW   AMERICAN   CYCLOPAEDIA. 


DISTINGUISHING-   EXCELLENCES. 

"While  we  prefer  that  the  work  should  speak  for  itself,  and  that  others 
should  herald  its  excellences,  we  cannot  refrain  from  calling  attention  to  the 
following  points,  in.  which  we  take  an  honest  pride  in  believing  that  the  New 
American  Cyclopaedia  surpasses  all  others  : — 

I.  IN  ACCURACY  AND  FRESHNESS  OF  INFORMATION. — The  value  of  a  work 
of  this  kind  is  exactly  proportioned  to  its  correctness.     It  must  preclude  the 
necessity  of  having  other  books.    Its  decision  must  be  final.    It  must  be  an 
ultimatum  of   reference,  or  it  is  good  for  nothing.      In  this  respect  we 
challenge  the  most  searching  examination  of  the  Cyclopaedia.    It  will  be 
found  in  all  its  departments  to  embody  the  results  of  the  most  recent  research 
at  home  and  abroad.     The  latest  authorities  on  every  topic  have  been  con- 
sulted, and  the  information  is  brought  down  to  the  very  day  of  printing. 

II.  IN  IMPARTIALITY. — Our  work  has  undergone  the  examination  of  Ar- 
gus eyes.     It  has  stood  the  ordeal.     It  is  pronounced  by  distinguished  men 
and  leading  reviews  in  all  parts  of  the  Union,  strictly  fair  and  national.    Es- 
chewing all  expressions  of  opinion  on  controverted  points  of  science,  philoso- 
phy, religion,  and  politics,  it  aims  at  an  accurate  representation  of  facts  and 
institutions,  of  the  results  of  physical  research,  of  the  prominent  events  in  the 
history  of  the  world,  of  the  most  significant  productions  of  literature  and  art, 
and  of  the  celebrated  individuals  whose  names  have  become  associated  with 
the  conspicuous  phenomena  of  their  age, — doing  justice  to  all  men,  all  creeds, 
all  sections. 

III.  IN  COMPLETENESS. — It  treats  of  every  subject,  in  a  terse  and  con- 
densed style,  but  fully  and  exhaustively.    It  is  believed  that  but  few  omis- 
sions will  be  found;   but  whatever  topics  may  through  any  oversight  be 
wanting,  will  be  supplied  in  an  Appendix.     There  shall  be  no  ground  of  com- 
plaint on  this  head. 

IV.  IN  AMERICAN  CHARACTER. — The  New  Cyclopaedia  is  intended  to  meet 
the  intellectual  wants  of  the  American  people.     It  is  not,  therefore,  modelled 
after  European  works  of  a  similar  design ;  but,  while  it  embraces  all  their 
excellences,  has  added  to  them  a  peculiar  and  unmistakable  American  char- 
acter.   It  is  the  production  mainly  of  American  mind.     It  views  every  sub- 
ject from  an  American  stand-point,  and  in  all  that  relates  to  the  biography, 
history,  geography,  and  institutions  of  our  country,  furnishes  a  fund  of  infor- 
mation whicli  can  be  obtained  nowhere  else. 

V.  IN  PRACTICAL  BEARING. — The  day  of  philosophical  abstraction  and 
speculation  has  passed  away.     This  is  an  age  of  action.     Cui  lono  is  the 


D.   APPLETON  &   CO.'S   PUBLICATIONS. 


universal  touch-stone.  Feeling  this,  we  have  made  our  Cyclopedia  thorough- 
ly practical.  No  man  of  action,  be  his  sphere  humble  or  exalted,  can  afford 
to  do  without  it. 

VI.  IN  INTEEEST  OF  STYLE. — The  cold,  formal,  and  repulsive  style  usual 
in  works  of  this  kind,  has  been  replaced  with  a  style  sparkling  and  emphati- 
cally readable.    It  has  been  the  aim  to  interest  and  please,  as  well  as  instruct. 
Many  of  our  writers  are  men  who  hold  the  foremost  rank  in  general  litera- 
ture, and  their  articles  have  been  characterized  by  our  best  critics  as  models 
of  elegance,  force,  and  beauty.    The  Press  unite  in  echoing  the  sentiment  of 
the  Editor  of  the  "  New  Yorker,"  who  says :  "  We  have  found  the  continuous 
reading  of  it  as  entertaining  as  if,  instead  of  being  a  book  of  matter-of-fact, 
it  had  been  a  romance  from  the  pen  of  a  master." 

VII.  IN  CONVENIENCE  OP  FOBM. — No  ponderous  quartos,  crowded  with 
fine  type  that  strains  the  eyes  and  wearies  the  brain,  are  here  presented. 
The  volumes  are  just  the  right  size  to  handle  conveniently ;  the  paper  is  thick 
and  white,  the  type  large,  the  binding  elegant  and  durable. 

VIII.  In  CHEAPNESS. — Our  Cyclopedia  has  been  universally  pronounced 
a  miracle  of  cheapness.    We  determined  at  the  outset  to  enlarge  its  sphere 
of  usefulness,  and  make  it  emphatically  a  book  for  the  people,  by  putting  it 
at  the  lowest  possible  price. 

Such  being  the  character  of  the  New  American  Cyclopaedia,  an  accurate, 
fresh,  impartial,  complete,  practical,  interesting,  convenient,  cheap  Dictionary 
of  General  Knowledge,  we  ask  who  can  afford  to  do  without  it?  Can  the 
merchant,  the  statesman,  tlie  lawyer,  the  physician,  the  clergyman,  to  whom 
it  gives  thorough  and  complete  information  on  every  point  connected  with 
their  several  callings  ?  Can  the  teacher,  who  is  enabled  by  the  outside  infor- 
mation it  affords,  to  make  his  instructions  doubly  interesting  and  profitable  ? 
Can  the  farmer,  to  whom  it  offers  the  latest  results  of  agricultural  research 
and  experiment  ?  Can  the  young  man,  to  whom  it  affords  the  means  of 
storing  his  mind  with  useful  knowledge  bearing  on  any  vocation  he  may 
have  selected?  Can  the  intelligent  mechanic,  who  wishes  to  understand 
what  he  reads  in  his  daily  paper  ?  Can  the  mother  of  a  family,  whom  it 
initiates  into  the  mysteries  of  domestic  economy,  and  teaches  a  thousand 
things  which  more  than  saves  its  cost  in  a  single  year?  In  a  word,  can  any 
intelligent  American,  who  desires  to  understand  the  institutions  of  his  coun- 
try, its  past  history  and  present  condition,  and  his  own  duties  as  a  citizen, 
deny  himself  this  great  American  digest  of  all  human  knowledge,  universally 
pronounced  the  best  Cyclopedia  and  the  most  valuable  work  ever  pub- 
lished? 


THE  NEW  AMERICAN   CYCLOPAEDIA. 


CONTRIBUTORS  TO  THE  CYCLOPEDIA. 

The  best  talent  in  all  parts  of  the  country,  and  many  distinguished  foreign 
writers,  have  been  engaged  in  the  New  American  Cyclopaedia.  "We  give  be- 
low the  names  of  several  of  the  most  prominent  contributors,  from  which  the 
public  may  form  some  idea  of  the  character  of  the  work. 


PAUL  AEPIN,  Esq.,  late  editor  of  the  "  Courrier 

des  Etas  Unis,"  New  York. 
HENRY  CAREY  BAIKD,  Esq.,  Philadelphia,  Pa. 
Hon.  GEORGE  BANCROFT,  LL.D.,  New  York. 
Hon.  J.  R.  BAKTLETT,  late  U.  8.  and  Mexican 

Boundary  Commissioner,  Providence,  R.  I. 
Rev.  HENRY  W.  BELLOWS,  D.D.,  New  York. 

C.  J.  BIDDLE,  Esq.,  Philadelphia,  Pa. 
JULIUS  BrNG,  Esq.,  New  York. 

Hon.  JEREMIAH  8.  BLACK,  U.  8.  Attorney  Gen- 
eral, Washington,  D.  C. 

Capt.  GEORGE  8.  BLAKE,  U.  8.  Naval  Academy, 
Annapolis,  Md. 

EDMUND  BLUNT,  Esq.,  U.  8.  Coast  Survey,  New 
York. 

JOHN  BONNES,  Esq.,  Translator  of  De  Tocque- 
ville's  "  Old  Regime,"  New  York. 

DION  BOURCICAULT,  Esq.,  New  York. 

Rer.  CHAKLEB  H.  BRIGHAM,  Taunton,  Mass. 

Hon.  ERASTUS  BROOKS,  New  York. 

WILLIAM  BROSS,  Esq.,  Chicago,  111. 

B.  GBATZ  BROWN,  Esq.,  St  Louis,  Mo. 

Rev.  JOHN  N.  BROWN,  D.D.,  Philadelphia. 

EDWARD  BROWN-SEQUARD,  M.D.,  London. 

WM.  M.  BROWNE,  Esq.,  editor  of  the  "  Constitu- 
tion," Washington,  D.  C. 

T.  A.  BURKE,  Esq.,  Savannah,  Ga. 

Rev.  GEOEGK  BUSH,  D.D. 

CHARLES  CAMPBELL,  Esq.,  Petersburg,  Ya. 

ROBERT  CARTER,  Esq.,  New  York. 

J.  P.  COMEGYS,  Esq.,  Wilmington,  Del. 

JOHN  ESTEN  COOKE,  Esq  ,  Richmond,  Va. 

Rev.  J.  W.  CUMMINGS,  D.D.,  Pastor  of  St  Ste- 
phen's Church,  New  York. 

Rev.  S.  8.  CUTTING,  D.D.,  Rochester  Univer- 
sity, New  York. 

D.  L.  DALTON,  Esq.,  "Washington,  D.  0 

Hon.  CHARLES  P.  DALY,  Judge  of  the  Court  of 

Common  Pleas,  New  York. 
ALEXANDER  H.  DANA,  Esq.,  New  York. 


Prof.  JAMES  D.  DANA,  LL.D.,  Yale  College 
New  Haven,  Conn. 

R.  H.  DANA,  Jr.,  Esq.,  Boston. 

Hon.  CHAS.  8.  DAVIES,  LL.D.,  Portland,  Me. 

WILLIAM  DORSHEIMER,  Esq.,  Buffalo,  N.  Y. 

Rev.  TRYON  EDWARDS,  D.D.,  New  London, 
Conn. 

Rev.  G.  E.  ELLIS,  D.D.,  Charlestowu,  Mass. 

RALPH  WALDO  EMEBBON,  Concord,  Mass. 

Hon.  EDWARD  EVERETT,  Boston,  Mass. 

Pres.  C.  C.  FELTON,  LL.D.,  late  Prof.  Harvard 
University,  Cambridge,  Mass. 

D.  W.  FISKE,  Esq.,  Secretary  of  the  Geographi- 
cal and  Statistical  Society,  New  York. 

CHARLES  L.  FLINT,  Esq.,  Sec.  of  the  Massachu- 
setts Board  of  Agriculture,  Boston,  Mass. 

JOHN  W.  FRANCIS,  M.D.,  LL.D.,  New  York. 

Capt.  WALTER  M.  GIBSON,  Pendleton,  S.  C. 

Prof.  CHANDLER  R.  GILMAN,  M.D.,  College  of 
Physicians  and  Surgeons,  New  York. 

Rev.  E.  W.  GILMAN,  Bangor,  Me. 

Prof.  HENRY  GOADBY,  M.D.,  State  Agricultural 
College  of  Michigan,  Ann  Arbor,  Mich. 

PARKE  GODWIN,  Esq.,  New  York. 

AUGUSTUS  A.  GOULD,  M.D.,  Boston,  Mass. 

HORACE  GREELEY,  Esq.,  New  York. 

GEORGE  W.  GREENE,  Esq.,  New  York. 

R.  A.  GUILD,  Esq.,  Librarian  of  Brown  Univer- 
sity, Providence,  R.  I. 

Prof.  CHARLES  W.  HACKLEY,  D.D.,  Columbia 
College,  New  York. 

NATHAN  HALE,  Jr.,  Esq.,  Boston,  Mass. 

Hon.  JAMES  HALL,  Cincinnati,  O. 

GERARD  HALLOCK,  Esq.,  editor  of  the  "Journal 
of  Commerce,"  New  York. 

Prof.  A.  W.  BARENESS,  Brown  University, 
Providence,  R.  I. 

JOHN  R.  G.  HABSARD,  Esq.,  New  York. 

CHARLES  C.  HAZEWELL,  Esq.,  Boston,  Mass. 

M.  HEILPRIN,  Esq.,  New  York. 


D.  APPLETON  &  CO.'S  PUBLICATIONS. 


CONTRIBUTORS  TO  THE  CYCLOPAEDIA. 


BICHABD  HILDBETH,  Esq.,  author  of  "  History 

of  the  United  States,"  &c.,  N.  Y. 
Bev.  THOMAS  HILL,  President  of  Antioch  Col- 
lege, Ohio. 

Hon.-GBOBGE  8.  HILLABD,  Boston,  Mass. 
J.  S.  HITTBLL,  Esq.,  San  Francisco,  Cal. 
JAMES  T.  HODGE,  Esq.,  Cooper  Institute,  New 

York. 

GEORGE  F.  HOITGHTON,  Esq.,  St.  Alban's,  Vt 
Prof.  L.  M.  HUBBABD,  D.D.,  University  of  N. 

C.,  Chapel  Hill,  N.  C. 
Eev.  HENBY  N.  HUDSON,  author  of  "  Lectures 

on  Shakespeare,"  &c.,  Litchfleld,  Conn. 
Prof.  S.  W.  JOHNSON,  Yale  College,  New  Haven, 

Conn. 

J.  C.  G.  KENNEDY,  Esq.,  Washington,  D.  C. 
Hon.  JOHN  B.  KEBB,  late  U.  S.  Minister  to  Cen- 
tral America,  Baltimore,  Md. 
Eev.,T.  STABB  KINO,  San  Francisco,  Cal. 
S.  KNEELAND,  M.D.,  Boston,  Mass. 
CHARLES  KBAITSIE,  M.D.,  New  York. 
CHARLES  LANMAN,  Esq.,  Washington,  D.  C. 
CIIABLES  G.  LELAND,  Esq.,  Philadelphia,  Pa. 
CHABLES  LINDSEY,  Esq.,  Toronto,  C.  W. 
Prof.  JAMES  E.  LOWELL,  Harvard  University, 

Cambridge,  Mass. 
E.  SHELTON  MACKENZIE,  D.C.L.,  Philadelphia, 

Pa. 
E.  D.  MANSFIELD,  Esq.,  author  of  "  American 

Education,"  Cincinnati,  O. 
CHABLES  MABX,  P.D.,  London,  Eng. 
E.  MASSEBAS,  Esq.,  editor  of  the  "  Courrier  des 

Etats  Unis,"  New  York. 
BENJAMIN  W.  MCCREADY,  M.D.,  New  York. 
Eev.  H.  N.  MoTYEiRE,  D.D.,  editor  "  Christian 

Advocate,"  Nashville,  Tenn. 
Hon.  A.  B.  MEEK,  Mobile,  Ala. 
Eev.  J.  N.  MUEDOCK,  D.D.,  Boston,  Mass. 
CHAELES  NOBDUOFF,  Esq.,  author  of  "Stories 

of  the  Island  World,"  &c.,  New  York. 
Eev.  SAMTTEL  OSGOOD,  D.D.,  New  York. 
J.  W.  PALMEB,  M.D.,  author  of  "  The  Golden 

Dagon,"  New  York. 
Prof.  THEOPHILUS   PABSONS,  LL.D.,  Harvard 

University,  Cambridge,  Mass. 
Prof.  E.  E.  PEASLEB,  M.D.,  New  York  Medical 

College,  New  York. 
JOHN  L.  PEYTON,  Esq.,  Staunton,  To. 
JAMES  S.  PIKE,  Esq.,  Calais,  Me. 
W.  8.  POBTEB,  Esq.,  New  Haven,  Conn. 


WM.  C.  PBIME,  Esq.,  author  of  "  Boat  Lifo  and 
Tent  Life,"  &c.,  New  York. 

HEBMANN  EASTER,  Esq.,  editor  of  the  "  Abend 
Zeitung,"  New  York. 

J.  H.  EAYMOND,  LL.D.,  Principal  of  the  Poly- 
technic Institute,  Brooklyn,  N.  Y. 

iEvi  BEITBEN,  M.D.,  Cooper  Institute,  N.  Y. 

CHARLES  E.  BODE,  Esq.,  editor  of  the  "  Ameri- 
can Publishers'  Circular,"  New  York. 

Eev.  J.  L.  RUSSELL,  Salem,  Mass. 

GEOBGE  SCHEDEL,  Esq.,  late  British  Consular 
Agent  for  Costa  Bica,  Staten  Island,  N.  Y. 

Prof.  Alexander  G.  SCHEM,  Dickinson  College' 
Carlisle,  Penn. 

Hon.  FBANCIS  SCHBOEDEB,  JR.,  late  U.  S.  Minis- 
ter to  Sweden,  Paris. 

Eev.  B.  SEARS,  D.D.,  President  of  Brown  Uni- 
versity, Providence,  B.  I. 

Hon.  WILLIAM  II.  SEWARD,  U.  8.  Senator  from 
New  York,  Auburn,  N.  Y. 

WM.  GILMOBE  SIMMS,  LL.D.,  Charleston,  8.  C. 

Prof.  HENRY  B.  SMITH,  D.  D.,  Union  Theological 
Seminary,  New  York. 

Eev.  J.  A.  SPENCEB,  D.D.,  author  of  "The  His- 
tory of  the  United  States,"  &c^  New  York. 

E.  CABLTON  SPEAGTTE,  Esq.,  Buffalo,  N.  Y. 

Eev.  WM.  B.  SPRAGUE,  D.D.,  Albany,  N.  Y. 

Hon.  E.  G.  SQUIEB,  author  of  "The  States  of 
Central  America,"  "Nicaragua,"  &c. 

Eev.  W.  P.  STBICKLAND,  D.D.,  New  York. 

WILLIAM  L.  SYMONDS,  Esq.,  Portland,  Me. 

ALEX.  W.  THAYEB,  Esq.,  Berlin,  Prussia. 

JOHN  E.  THOMPSON,  Esq.,  editor  of  "  Southern 
Literary  Messenger,"  Bichmond,  Va. 

GEOBGE  TICKNOB,  LL.D.,.Boston,  Mass. 

OSMOND  TIFFANY,  Esq.,  Springfield,  Mass. 

E.  T.  TRALL,  M.D.,  author  of  "  Hydropathic 
Encyclopaedia,"  New  York. 

Baron  DE  TBOBBIAND,  New  York. 

W.  P.  TROWBRIDGE,  Esq.,  U.  S.  Coast  Survey, 
Washington,  D.  C. 

HENRY  T.  TUCKERMAN,  Esq.,  New  York. 

ALEXANDER  WALKER,  Esq.,  editor  of  the  "Del- 
ta," New  Orleans. 

W.  T.  WALTHALL,  Esq.,  Spring  Hill,  Ala. 

CHARLES  8.  WEYMAN,  Esq.,  New  York. 

Eev.  W.  D.  WILSON,  D.D.,  Hobart  Free  College, 
Geneva,  N.  Y. 

E.  L.  YOUMANS,  Esq.,  author  of  "  The  Hand- 
Book  of  Household  Seiencft,"  New  York. 


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